Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Farneth v. Wal-Mart Stores, Inc.

United States District Court, Third Circuit

December 30, 2013

BRIAN FARNETH, on behalf of himself and all others similarly situated, Plaintiff,
WAL-MART STORES, INC., t/d/b/a Wal-Mart, Defendant.


MARK R. HORNAK, District Judge.

Brian Fameth ("Mr. Farneth") brings this action to recover Pennsylvania state sales tax ("Sales Tax") that he paid to Defendant Wal-Mart Stores, Inc. ("Wal-Mart"). Mr. Farneth alleges that when he used a "buy one, get one" ("BOGO") coupon to get a discount on two (2) cans of Gillette Fusion shaving gel, Wal-Mart improperly charged him excess Sales Tax of twenty-one cents[1] on the original $2.97 per item purchase price of both items without first deducting the amount of the BOGO discount. On behalf of himself and a putative class of persons throughout Pennsylvania whom he alleges are owed refunds of similarly, allegedly improperly charged Sales Tax amounts by Wal-Mart, Mr. Farneth asserts claims for conversion and misappropriation (Count I), breach of constructive trust (Count II), unjust enrichment (Count III), and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") (Count IV), 73 Pa. Cons. Stat. §§ 201-1, et seq. [2] Mr. Farneth requests declaratory and injunctive relief, as well as monetary damages.

Pending before the Court are two motions - Wal-Mart's Motion to Stay the case pursuant to Pennsylvania law's primary jurisdiction doctrine, ECF No. 11, and Mr. Farneth's Motion to Remand the case to state court, ECF No. 16. After careful consideration of the parties' moving, opposition, and reply papers, and after oral argument on the Motions, for the reasons that follow, the Court denies Wal-Mart's Motion to Stay and grants Mr. Fameth's Motion to Remand, based on principles of comity.


On June 8, 2013, Mr. Farneth purchased two (2) cans of shaving gel at a Wal-Mart store in the Aspinwall neighborhood of Pittsburgh, Pennsylvania. Complaint ("CP"), at, ¶ 4. Each can of shaving gel cost $2.97. Id. at ¶ 8. At the time of purchase, Mr. Fameth presented the Wal-Mart cashier with a BOGO coupon. Id. at ¶ 4. The Wal-Mart cashier accepted the coupon and charged Mr. Farneth a total of $2.97 for the two cans of shaving gel. Id. at ¶¶ 4, 6, 8. However, according to his receipt, Wal-Mart charged Mr. Farneth Sales Tax of $0.42 on the sale, computed by multiplying the applicable 7 percent Sales Tax by the original sale price of the two cans of shaving gel of $5.94. Id. at ¶¶ 7-8.

The applicable Pennsylvania Department of Revenue Regulation ("Regulation") provides:

Amounts representing on-the-spot cash discounts, employee discounts, volume discounts, store discounts such as "buy one, get one free, " wholesaler's or trade discounts, rebates and store or manufacturer's coupons shall establish a new purchase price if both the item and the coupon are described on the invoice or cash register tape.

61 Pa. Code § 33.2(b)(2) (2013). Mr. Farneth contends that because his receipt described the items he purchased along with the coupon that applied to his purchase, that Pennsylvania tax Regulation required Wal-Mart to deduct the amount of the coupon from the taxable portion of the purchase price before assessing Sales Tax. CP ¶¶ 12-13. Therefore, according to Mr. Farneth, Wal-Mart should have charged him Sales Tax on $2.97 instead of $5.94. Id. at ¶¶ 8-13. As the basis for his putative class action suit, he further alleges that as a common practice, Wal-Mart overcharges Sales Tax in this same fashion to customers who present similar BOGO discount coupons. ld. at ¶¶ 13-14.

Wal-Mart, on the other hand, contends that a 2005 staff opinion letter from the Pennsylvania Department of Revenue's Office of Chief Counsel in essence blessed the process Wal-Mart used to charge Sales Tax on the involved shaving gel by advising Wal-Mart that it may not, when using its then-current point-of-sale technology, deduct the value of a manufacturer's coupon before calculating sales tax. ECF No. 11 at ¶¶ 5-6. The parties dispute the current validity and applicability of that staff opinion letter.

Mr. Farneth originally brought this putative class action in the Allegheny County Court of Common Pleas. ECF No. 1 at 1. Wal-Mart timely removed the case to this Court on the basis of diversity pursuant to 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005 ("CAFA"), and as authorized by 28 U.S.C. § 1453. Wal-Mart then filed a Motion to Stay the case pursuant to Pennsylvania's primary jurisdiction doctrine, ECF No. 11, and a Brief in Support of its Motion. ECF No. 12. Mr. Farneth filed a Response in Opposition with an Alternative Motion to Remand the case to state court, ECF No. 16, along with a Brief in Opposition to Wal-Mart's Motion to Stay and in Support of its Alternative Motion to Remand. ECF No. 17. Wal-Mart next tiled a Reply Brief as to its Motion to Stay, ECF No. 19, and a Response in Opposition to Mr. Farneth's Motion to Remand, ECF No. 20. Mr. Fameth tiled a Sur-Reply Brief as to Wal-Mart's Motion to Stay. ECF No. 24. Finally, at the Court's request, after oral argument on the Motions, both parties filed Supplemental Briefs further explaining their positions on their respective motions.[3] ECF Nos. 26 and 27.


Statutes conferring federal jurisdiction, such as CAF A, "should be read with sensitivity to federal-state relations' and wise judicial administration.'" Levin v. Commerce Energy, Inc., 560 U.S. 413, 423 (2010) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)). The Tax Injunction Act ("TIA") and its attendant principles of comity counsel such sensitivity by this Court in deciding whether exercising federal jurisdiction over the case is appropriate. Pursuant to the TIA, "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. § 1341.[4]

Additionally, the "more embracive" doctrine of comity applicable to state taxation cases "restrains federal courts from entertaining claims for relief that risk disrupting state tax administration." Levin, 560 U.S. at 417 (2010) (citing Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 102 (1981)). In Great Lakes Dredge & Dock Co. v. Huffman, the Supreme Court illustrated the rationale behind the comity doctrine:

Interference with state internal economy and administration is inseparable from assaults in the federal courts on the validity of state taxation, and necessarily attends injunctions, interlocutory or final, restraining collection of state taxes. These are the considerations of moment which have persuaded federal courts of equity to deny relief to the taxpayer - especially where the state, acting within its constitutional authority, has set up its own adequate procedure for securing to the taxpayer the recovery of an illegally exacted tax.

319 U.S. 293, 298 (1943).[5]

In Levin, the Supreme Court held that principles of comity demanded deference to the state court system where plaintiffs brought Commerce Clause and Equal Protection claims against the state of Ohio, alleging that certain tax exemptions enjoyed by local natural gas distribution companies under the Ohio Revenue Code were discriminatory. 560 U.S. at 418-19 , 432. The Court pointed to a "confluence of factors" that led to its conclusion. First, plaintiffs sought federal court review of "commercial matters over which Ohio enjoys wide regulatory latitude." Id. at 431. That is certainly the case here. Second, their suit did not involve a fundamental federal right or classification warranting heightened judicial scrutiny. ld. This allowed the Court to maintain its "proper reluctance to interfere by prevention with the fiscal operations of the state governments... in all cases where the [f]ederal rights of the persons could otherwise be preserved unimpaired." Id. at 422 (quoting Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U.S. 276, 282 (1909)). That is also the case here. Third, the Court decided that Ohio state courts were "better positioned than their federal counterparts to correct any violation because they are more familiar with state legislative preferences and because the TIA does not constrain their remedial options." Id. at 431-32. In this Court's judgment, that, too, is the case here.

A similar confluence of factors leads the Court to conclude that on the basis of comity considerations, this case should be remanded to state court. Mr. Farneth is asking the Court to consider and then apply part of the Pennsylvania Department of Revenue's regulatory Sales Tax scheme - a mechanism by which the state of Pennsylvania collects Sales Tax revenue - over which the state enjoys wide regulatory latitude. Wal-Mart is correct in arguing that Mr. Farneth is not questioning the validity of the state Regulation itself, but is instead alleging that it (Wal-Mart) violated the Regulation by improperly charging, collecting, and remitting Sales Tax on the full purchase price before deducting the applicable BOGO discount.[6] However, for the Court to determine whether Wal-Mart did, or did not, violate 61 Pa. Code § 33.2(b)(2) in regard to collecting Sales Tax on the involved gel, it would have to discern and then apply the proper method of Sales Tax collection authorized by that Regulation. Mr. Farneth anticipated this problem when he included citations to Pennsylvania Department of Revenue guidance on that Regulation in his Complaint.[7] Wal-Mart also foresaw this concern. In its Brief in support of its Motion to Stay, it cited to a letter from the Pennsylvania Department of Revenue advising Wal-Mart on the proper method of collecting Sales Tax when presented with BOGO coupons.[8]

The one thing the parties seem to agree on is that when ruling on the proper method of Sales Tax collection under the applicable Regulation in these shaving gel-driven, BOGO-centric circumstances, the Court would undoubtedly have to construe the language of the Regulation, interpret Pennsylvania Department of Revenue guidance, determine what weight to give to a 2005 Department of Revenue Sales Tax staff opinion letter, and ultimately apply its analysis as a federal court to a state tax collection regulation and regime. Essentially, "[t]o rule on the merits of this case, the court would have to make, albeit indirectly, a ruling as to the legitimacy of the revenue collection practices of a state entity." Trading Co. of N. Am., Inc. v. Bristol Tp. Auth., 47 F.Supp.2d 563, 569 (E.D. Pa. 1999). Such interference with state tax administration was recognized by the Supreme Court in Great Lakes to be "inseparable from assaults in federal court on the validity of state taxation." 319 U.S. at 298.

The case at hand involves no federally-protected fundamental right or classification for the benefit of either party that invites heightened judicial scrutiny, but is instead a quarrel focusing on how Sales Tax is to be collected and remitted under state law in BOGO coupon situations. Mr. Farneth brought suit for state-law claims of conversion and misappropriation, breach of constructive trust, unjust enrichment, and unfair trade practices under the UTPCPL. None of these causes of action contemplates the assertion of a federal right, or a defense based on federal law, and certainly none that could not be addressed in state court, Levin, 560 U.S. at 429. Pennsylvania courts are simply better positioned than this Court to ascertain and then correct any violation of state tax collection laws[9] - they are presumably more familiar with the administration of Pennsylvania tax Regulations and are wholly unburdened by the TIA's limitations in fashioning proper and complete remedies. Id. at 428. Taken together, these considerations counsel deference to the state adjudicative processes. Id. at 432.[10]

The Court's conclusion is reinforced by the Third Circuit's decision in Sipe v. Amerada Hess Corp., 689 F.2d 396 (3d Cir. 1982). There, seamen challenged their employer's practice of withholding of a portion of their wages under New Jersey's unemployment compensation and temporary disability benefits tax laws. Sipe, 689 F.2d at 398. The plaintiffs asserted that this practice violated federal law, and, as is the case here, sought injunctive relief, a refund of the money withheld, and other monetary damages. Id. The court held that, applying either the Tax Injunction Act or related principles of comity, the district court lacked jurisdiction to hear the case. Id. at 404, 408. As in Sipe, this Court cannot retain jurisdiction over a case that would require it to determine the proper interpretation of the applicable state tax Regulation before ruling on the merits, and it is, of course, axiomatic that challenges to the methods and procedures of state tax collection may do "no less damage" to a state tax system than would a head-on attack on the legitimacy of an assessment. Trading Co., 47 F.Supp.2d at 571.

Wal-Mart argues that Sipe does not compel the Court to decline jurisdiction over this case under the comity doctrine because there, the state of New Jersey was a named defendant and was enjoined from future withholding along with plaintiffs' employer, id. at 404, whereas here, the Commonwealth of Pennsylvania is not a party, and Mr. Farneth is not seeking any relief directly from the state. However, even if Sipe may not compel remand, that does not diminish its relevance to this Court's analysis. Further, that Pennsylvania has not been joined to this action does not mean that it will not later be joined as an interested party, or even an indispensable one. The original complaint in Sipe did not name New Jersey as a defendant; the state was named later in an amended complaint and was joined as a third party defendant in two other consolidated actions. Id.

At oral argument, the Plaintiff conceded that because the central issue in this case is the proper interpretation of a Pennsylvania Department of Revenue Regulation, the Commonwealth may well be an indispensable party to this action. The foundation of its Motion to Remand is that either under 28 U.S.C. § 1332(d)(5)(A)[11] or Fed.R.Civ.P. 19(b)[12], the case should be remanded to state court if the Court determines that the Commonwealth must be joined as a party. Wal-Mart similarly indicates that the Commonwealth is at least a highly interested party to this action by arguing in its brief that the Pennsylvania Legislature committed resolution of this issue to the Department of Revenue, and that the case should be stayed pending the Department's administrative decision as to the proper interpretation of the relevant revenue Regulation, applying the state law version of the "primary jurisdiction" doctrine. The Court agrees that Pennsylvania has an undeniable interest in the interpretation and application of its own Sales Tax Regulation (whether it is joined as a party or not), and this is yet another reason that considerations of comity prudentially divest the Court of jurisdiction to hear the case.

Before a federal court may remand a case to state court based on comity principles, state law must provide a plain, adequate, and complete remedy. McNary, 454 U.S. at 116. This language is not significantly different in meaning from the Tax Injunction Act's requirement of a "plain, speedy, and efficient" state remedy. Id. at 116 n. 8 (citing Great Lakes, 319 U.S. at 297-99, Tully v. Griffin, Inc., 429 U.S. 68, 73-74 (1976), Hillsborough v. Cromwell, 326 U.S. 620, 622-23 (1946), Matthews v. Rodgers, 284 U.S. 521, 525-26 (1932)). "Both phrases refer to the obvious precept that plaintiffs seeking protection of federal rights in federal courts should be remitted to their state remedies if their federal rights will not thereby be lost."[13] Id.

Mr. Farneth is not seeking relief implicating any federal right that would be lost if the case were remanded to state court. Additionally, both parties have pointed to state remedies that they believe would be adequate and complete, and each relies on competing interpretations of Sales Tax regulations. Wal-Mart argues vigorously for the preeminence of a state law resolution of these issues, and Wal-Mart's argument for deference to a state administrative process under the primary jurisdiction doctrine is a strong indication that federal court deference under comity principles is appropriate. Mr. Farneth initially filed this action in state court, where he undoubtedly believed that he could obtain a sufficient remedy on his asserted causes of action. He has also filed a motion to remand the case to state court in the event that this Court determines that the Pennsylvania Department of Revenue is an indispensable party and cannot be joined in federal court. Thus, Mr. Farneth plainly believes that Pennsylvania's adjudicative processes would afford him a full and adequate remedy.

The entire basis of Wal-Mart's Motion to Stay is the argument that with its statutory Sales Tax scheme, Pennsylvania has committed issues related to the proper manner of collecting Sales Tax primarily to the Pennsylvania Department of Revenue, and therefore, under Pennsylvania's primary jurisdiction doctrine, the Department of Revenue should administratively determine whether Wal-Mart properly collected Sales Tax on Mr. Farneth's purchase.[14] If the Court remanded this case, that option would not be foreclosed to the state court[15], and that court would be well-equipped to determine whether under Pennsylvania law, the primary jurisdiction doctrine mandated a stay of its state judicial proceedings. See Stoloff v. Neiman-Marcus Group, Inc., 24 A.3d 366 (Pa.Super. 2011). By the central tenet of its Motion, Wal-Mart necessarily demonstrates that it believes that Pennsylvania law and proceedings supply an adequate (and most appropriate) remedy available for the adjudication of the relevant claims and defenses.

Since Pennsylvania, acting within its constitutional authority, has set up its own adequate procedures for securing to taxpayers the recovery of illegally exacted taxes, this is precisely the kind of state tax case the Supreme Court in Great Lakes contemplated should be remanded on comity grounds.[16] And because plain, adequate, and complete state remedies (judicial or administrative) that would not interfere with any asserted federal right do exist at the state level, the Court concludes that the comity doctrine strongly counsels remand of the Plaintiffs suit.[17]


For the reasons stated, Wal-Mart's Motion to Stay is denied without prejudice, and the Plaintiffs Motion to Remand is granted on comity grounds. An appropriate order will follow.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.