PITTSBURGH – A class action lawsuit which claims that a number of retailers have been illegally charging sales tax on the purchases of face masks during the coronavirus pandemic, is now being heard in federal court and the defendant retailers are seeking to dismiss the case.
Christina Duranko, Gerry McLean, Mary Marous, Joyce Wojton, Beverly Evans, Jennifer Pollock and Martha Bailey (individually and on behalf of all others similarly situated) first collectively filed suit in the Allegheny County Court of Common Pleas on Nov. 23.
The lawsuit targeted nine different retailers, including Big Lots, Dollar General, Giant Eagle, Jo-Ann Stores, Ollie’s Bargain Outlet Holdings, The Home Depot, Tuesday Morning, Ulta Beauty and Walmart.
(Claims against Tuesday Morning were voluntarily dismissed on Dec. 31.)
Each of the plaintiffs said they purchased masks from the defendant retailers during the coronavirus pandemic, only to later learn that they were charged sales tax. They argued that Pennsylvania state law prohibits sales tax on medical supplies through the Unfair Trade Practices and Consumer Protection Law.
The lawsuit sought class action status for all those who purchased face masks from those businesses since March 6 and were charged sales tax for them.
UPDATE
Counsel for Walmart filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on Dec. 24, citing the Class Action Fairness Act and its factors of diversity of citizenship, number of plaintiffs and amount sought in damages.
The remaining defendants filed a motion to dismiss on Feb. 1, for failure to state a claim.
“Plaintiffs’ alleged claims are subject to dismissal with prejudice for several independently dispositive reasons. First, tax collection is not ‘trade or commerce’ under the Unfair Trade Practices and Consumer Protection Law, and therefore is outside the scope of the UTPCPL. Second, Plaintiffs have not alleged any facts to support their allegations that defendants engaged in fraudulent, deceptive or unfair conduct,” the dismissal motion stated.
“Plaintiffs have not alleged that they justifiably relied on any false representations from defendants. Fourth, plaintiffs have not suffered an ascertainable loss, let alone any loss caused by justifiable reliance on any alleged representations by defendants. Fifth, plaintiffs’ claims are barred by the voluntary payment doctrine because they paid any sales tax voluntarily with full knowledge of all relevant facts.”
The defendants respectfully request that their motion to dismiss be granted and plaintiffs’ claims be dismissed with prejudice
Meanwhile, for multiple counts of violating the UTPCPL, the plaintiffs are seeking a long list of reliefs:
• An order certifying each proposed class, appointing plaintiffs as representative of each proposed class they seek to represent, and appointing undersigned counsel as counsel for each proposed class;
• An order awarding $100 per violation of the UTPCPL, and not a refund of the overcharges that defendants misrepresented as sales tax;
• An order awarding attorneys’ fees and costs; and
• An order awarding all other relief that is just, equitable and appropriate.
The plaintiffs are represented by Kevin W. Tucker and Kevin Abramowicz of East End Trial Group, in Pittsburgh.
The defendants are represented by Gerald J. Stubenhofer Jr., Courtney S. Schorr and Elizabeth Thomas of McGuire Woods, Darlene M. Nowak and Robert M. Barnes of Marcus & Shapira, Jack B. Cobetto of Eckert Seamans Cherin & Mellott, Molly E. Meacham of Babst Calland Clements & Zomnir and Kenneth M. Argentieri of Duane Morris, all in Pittsburgh, plus James W. Forsyth, Michael W. McTigue Jr. and Meredith C. Slawe of Cozen O’Connor, in Philadelphia.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-02000
Allegheny County Court of Common Pleas cases GD-20-011973
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com