Dan Churney Jul. 18, 2016, 4:44pm

An Illinois appeals court has flattened a would-be class-action suit against the Papa Murphy’s pizza chain, by affirming a lower court ruling that, under Illinois law, a take-and-bake pizza is not a necessity, as alleged by plaintiff in an effort to reclaim an allegedly excessive pizza sales tax. 

The July 5 decision was authored by Justice Thomas Welch in the Fifth District Appellate Court of Illinois, with concurrence from justices S. Gene Schwarm and Melissa Chapman. The unpublished order was filed under Illinois Supreme Court Rule 23, which means it may not be cited as precedent, except in the limited circumstances allowed by Rule 23. The Fifth District is seated in downstate Mt. Vernon. 

Papa Murphy’s corporate offices are in Vancouver, Wash., with outlets across the U.S. and Canada. Papa Murphy’s sells uncooked pizzas, which customers can take home to bake. 

In August 2014, in Williamson County Circuit Court, Edward Karpowicz filed a putative class action suit alleging Papa Murphy’s, through its franchisee in Edwardsville, charged a 9 percent sales tax on a $9 pizza he had bought. 

Karpowicz alleged the tax violated the Illinois Consumer Fraud and Deceptive Business Practices Act, because the law imposes a limit of a 1 percent tax on “food items that are sold by a retailer without facilities for on-premises consumption of food and that are not ready for immediate consumption,” according to court documents. Karpowicz alleged the 9 percent tax charge was a routine practice of defendants, which resulted in substantial losses to customers. 

Associate Judge Brian Lewis dismissed the suit, rejecting Karpowicz’s argument he was entitled to recovery of the tax, because the tax was paid under duress. 

In addressing Karpowicz’s appeal, Justice Welch noted plaintiffs who believe they paid an improper and involuntary sales tax should lodge a suit under the Illinois Protest Fund Act, effectively suing the state and the retailer to have the allegedly improper sales tax put into a protest fund. A suit can be filed without invoking the Protest Fund Act, if the plaintiff shows the retailer used deception to keep the tax payment for their own enrichment or plaintiff paid the tax under duress. 

However, Welch noted Karpowicz was given a receipt for his pizza, on which was printed the sales tax amount, so Karpowicz cannot claim he was deceived.

However, Karpowicz said he bought the pizza under duress, as pizza – being a food – is a basic human necessity. To back up this argument, Karpowicz cited the case of Geary v. Dominick’s Finer Foods, which went before the Illinois Supreme Court in 1989. According to Karpowicz’ interpretation of that case, Geary contended Dominick’s imposed an illegal sales tax on feminine hygiene products, which was paid under duress, because menstruating women were behind the eight ball when it came to their condition and had little choice but to buy the necessary products and pay the tax, illegal though it allegedly was. 

However, Justice Welch said Karpowicz read too much into Geary v. Dominick’s, pointing out the state supreme court did not define what is a “necessity,” much less that tampons or pizza might fit the bill. 

“Plaintiff cannot make a specialty item at a restaurant a necessity simply by identifying it within the broad genus of ‘food,’” Welch observed. “A Papa Murphy’s take-and-bake pizza is not essential in the same way as feminine hygiene products are to menstruating women.” 

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