Madison - St. Clair Record

Tuesday, August 20, 2019

Papa John’s denies liability, says plaintiffs assumed risk in pizza delivery fee tax

By Heather Isringhausen Gvillo | Apr 12, 2016

Papa John’s argues that customers waived their claims that the pizza company inappropriately taxed fees imposed on pizza delivery charges.

Zachary Tucker, individually and on behalf of all others similarly situated, filed the class action suit on Jan. 13 against Papa John’s International Inc. and Papa John’s USA Inc.

According to the complaint, the pizza company allows customers to pick up their pizza at one of its restaurants or have it delivered. The delivery option includes a fee listed separately on the receipt. Tucker alleges Papa John’s is collecting taxes on the additional fee, which he claims is against the law in Illinois. He explains that businesses are not allowed to tax delivery fees if the cost of the delivery is equal to or exceeds the delivery fee.

As a result, he claims every customer who has ordered food for delivery from any Papa John’s location in Illinois has paid excess sales tax that the defendants and their franchises were not entitled to collect.

Tucker alleges he was illegally charged 6.85 percent, or an additional 16 cents tax, on the alleged non-taxable delivery service.

He seeks class action status for the case, including any person or entity in Illinois that ordered Papa John’s food for delivery and was charged sales tax on the delivery fee.

Papa John’s USA and Papa John’s International answered the complaint on March 21 through attorneys Larry Hepler and W. Jason Rankin of HeplerBroom in Edwardsville.

The defendants denied the allegations against them and filed 32 affirmative defenses against the class. They argue that the claims are “overbroad, vague, or conclusory and include terms that are undefined, susceptible to different meanings, or ambiguously used in the Complaint.”

They also allege the complaint is barred by the statute of limitations and several doctrines.

Further, they argue that the plaintiff has waived any claims he may have against the defendants by agreeing to the Terms of Use or Papa John's Rewards Terms and Conditions. And the plaintiff assumed the risk or consented to any injury or damages alleged in the complaint, barring recovery.

“Plaintiff’s claims are barred because any reliance by Plaintiff upon representations of PJUSA or PJI was neither reasonable nor justifiable.

“Plaintiff’s claims are barred because the actions allegedly taken by PJI were not the proximate cause of any alleged damages incurred by Plaintiff,” the affirmative defenses state.

Tucker seeks an order preventing the defendants from charging the sales tax on delivery fees, damages, restitution of all monies paid in connection with the wrongfully charged sales tax, attorney fees and court costs.

He is represented by Francis Flynn Jr. and Tiffany Yiatras of Carey, Danis & Loew of St. Louis and Alan Wagner and Jason Whittemore of Wagner McLaughlin P.A. in Tampa, Fla.

Madison County Circuit Court case number 16-L-49

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