(Photo: Marlith, via Wikimedia Commons)

The Pennsylvania Supreme Court has rejected a King’s Bench petition by the city of Philadelphia in the ongoing legal battle over the city’s soft drink tax.

The justices denied the request in a one-page order issued Monday.

The case is currently on appeal to the Commonwealth Court, following Philadelphia Court of Common Pleas Judge Gary Glazer’s Dec. 19 order dismissing a complaint filed by a group of food and beverage retailers, distributors and consumers in Philadelphia, which alleged that the Philadelphia beverage tax is unlawful.

But in its application seeking a direct appeal to the Supreme Court, filed in early January, the city argued that a final decision on the legality of the tax is needed sooner because further delay will “jeopardize significant public benefits that [the Philadelphia beverage tax] revenues will support.”

Specifically, a portion of the tax revenues will be used to fund an expanded pre-K program, the city said in its filing.

“Indeed, the city began implementing that program this week, offering approximately 2,000 pre-K seats, at the city’s expense,” the city said in its filing. “But the city will not be able to provide the support necessary to fully implement its planned expansion of the program without certainty that the PBT, and its anticipated revenues, are not at risk of judicial invalidation.”

The city also said it’s on the verge of investing about $500 million in infrastructure, but that its “ability to afford bond financing for that initiative is premised on a final decision concerning the legal challenge to the PBT.”

Monday’s order marked the second time the high court has refused to exercise its King’s Bench powers or extraordinary jurisdiction in litigation over the controversial tax.

In November, the justices denied a similar petition filed by the plaintiffs.

In their response to the city’s application in January, the plaintiffs said they did not oppose the exercise of King’s Bench or extraordinary jurisdiction but noted that it’s “exceptional for petitioners to file a King’s Bench petition seeking review of a trial court ruling in their favor two months after this court denied respondents’ King’s Bench petition, which sought review of the same issues petitioners now ask this court to decide.”

The plaintiffs also took aim at the city’s argument that a delay in a final ruling on the tax would impair its planned pre-K expansion, saying that claim requires “more context.”

“The city’s annual budget is in excess of $4 billion, and it expects $92 million annually from the tax,” the plaintiffs said. “The money from the tax goes into the general fund, which is allocated however the city has chosen to allocate it. So any delay in implementing the planned expansion will reflect the city’s own priorities, not the necessary result of this litigation.”

In a statement issued Monday, Shanin Specter of Kline & Specter, representing the plaintiffs, said, “The city’s request looked like an effort to avoid the Commonwealth Court. I’m not surprised the Supreme Court denied it.”

City Solicitor Sozi Pedro Tulante said in a statement that the court’s denial of its application “was not unexpected,” given its previous denial of the plaintiffs’ King’s Bench request.  

“We are confident the Commonwealth Court will uphold the legality of the beverage tax, just as the Court of Common Pleas did,” Tulante’s statement said.

The tax, which was approved by the Philadelphia City Council last June, was the brainchild of Mayor Jim Kenney, who pitched it as a way to raise tens of millions of dollars to fund early childhood education initiatives throughout the city.

In his Dec. 19 ruling, Glazer said the soda tax is not duplicative of the state sales tax, and is expressly allowed under the Sterling Act, which empowers the city of Philadelphia to collect certain additional taxes for general revenue purposes. The tax also is not pre-empted by the Supplemental Nutrition Assistance Program (SNAP), Glazer’s opinion said, because the tax is on the distributor rather than the consumer. Finally, he wrote, the tax does not violate a clause of the state constitution that requires taxes to be imposed uniformly on all members of a given class.

Zack Needles can be contacted at 215-557-2373 or zneedles@alm.com. Follow him on Twitter @ZackNeedlesTLI.

The Pennsylvania Supreme Court has rejected a King’s Bench petition by the city of Philadelphia in the ongoing legal battle over the city’s soft drink tax.

The justices denied the request in a one-page order issued Monday.

The case is currently on appeal to the Commonwealth Court, following Philadelphia Court of Common Pleas Judge Gary Glazer’s Dec. 19 order dismissing a complaint filed by a group of food and beverage retailers, distributors and consumers in Philadelphia, which alleged that the Philadelphia beverage tax is unlawful.

But in its application seeking a direct appeal to the Supreme Court, filed in early January, the city argued that a final decision on the legality of the tax is needed sooner because further delay will “jeopardize significant public benefits that [the Philadelphia beverage tax] revenues will support.”

Specifically, a portion of the tax revenues will be used to fund an expanded pre-K program, the city said in its filing.

“Indeed, the city began implementing that program this week, offering approximately 2,000 pre-K seats, at the city’s expense,” the city said in its filing. “But the city will not be able to provide the support necessary to fully implement its planned expansion of the program without certainty that the PBT, and its anticipated revenues, are not at risk of judicial invalidation.”

The city also said it’s on the verge of investing about $500 million in infrastructure, but that its “ability to afford bond financing for that initiative is premised on a final decision concerning the legal challenge to the PBT.”

Monday’s order marked the second time the high court has refused to exercise its King’s Bench powers or extraordinary jurisdiction in litigation over the controversial tax.

In November, the justices denied a similar petition filed by the plaintiffs.

In their response to the city’s application in January, the plaintiffs said they did not oppose the exercise of King’s Bench or extraordinary jurisdiction but noted that it’s “exceptional for petitioners to file a King’s Bench petition seeking review of a trial court ruling in their favor two months after this court denied respondents’ King’s Bench petition, which sought review of the same issues petitioners now ask this court to decide.”

The plaintiffs also took aim at the city’s argument that a delay in a final ruling on the tax would impair its planned pre-K expansion, saying that claim requires “more context.”

“The city’s annual budget is in excess of $4 billion, and it expects $92 million annually from the tax,” the plaintiffs said. “The money from the tax goes into the general fund, which is allocated however the city has chosen to allocate it. So any delay in implementing the planned expansion will reflect the city’s own priorities, not the necessary result of this litigation.”

In a statement issued Monday, Shanin Specter of Kline & Specter , representing the plaintiffs, said, “The city’s request looked like an effort to avoid the Commonwealth Court. I’m not surprised the Supreme Court denied it.”

City Solicitor Sozi Pedro Tulante said in a statement that the court’s denial of its application “was not unexpected,” given its previous denial of the plaintiffs’ King’s Bench request.  

“We are confident the Commonwealth Court will uphold the legality of the beverage tax, just as the Court of Common Pleas did,” Tulante’s statement said.

The tax, which was approved by the Philadelphia City Council last June, was the brainchild of Mayor Jim Kenney, who pitched it as a way to raise tens of millions of dollars to fund early childhood education initiatives throughout the city.

In his Dec. 19 ruling, Glazer said the soda tax is not duplicative of the state sales tax, and is expressly allowed under the Sterling Act, which empowers the city of Philadelphia to collect certain additional taxes for general revenue purposes. The tax also is not pre-empted by the Supplemental Nutrition Assistance Program (SNAP), Glazer’s opinion said, because the tax is on the distributor rather than the consumer. Finally, he wrote, the tax does not violate a clause of the state constitution that requires taxes to be imposed uniformly on all members of a given class.

Zack Needles can be contacted at 215-557-2373 or zneedles@alm.com. Follow him on Twitter @ZackNeedlesTLI.