OPINION BY JUDGE WOJCIK

Shanin Specter and Charles L. Becker, Philadelphia, for appellants.

Mark A. Aronchick, Philadelphia, for appellees.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION BY JUDGE WOJCIK

Lora Jean Williams, et al. (Objectors) appeal the orders of the Philadelphia County Court of Common Pleas (trial court) sustaining the preliminary objections of the City of Philadelphia and Frank Breslin, Commissioner of the Philadelphia Department of Revenue (Department) (collectively, City) and dismissing Objectors' complaint regarding the validity of the Philadelphia Beverage Tax (PBT), and denying Objectors' petition for a special injunction. We affirm.

In June 2016, the City enacted Ordinance No. 160176. In Section 1, the City amended the Philadelphia Code, imposing the PBT effective January 1, 2017, to be paid quarterly. Phila. Code § 19–4103(1); § 19–4106(1). The PBT applies broadly to "sugar-sweetened beverages," which are defined as "[a]ny nonalcoholic beverage that lists as an ingredient" either "any form of caloric sugar-based sweetener" or "any form of artificial sugar substitute," and "[a]ny nonalcoholic syrup or other concentrate that is intended to be used in the preparation of a beverage and that lists" either of the foregoing sweeteners as an ingredient. Phila. Code § 19–4101(3)(a), (b). The PBT provides the following as examples of "sugar-sweetened beverages": "soda; non-100% fruit drinks; sports drinks; flavored water; energy drinks; pre-sweetened coffee or tea; and non-alcoholic beverages intended to be mixed into an alcoholic drink." Phila. Code § 19–4101(3)(d). The PBT specifically excludes: (1) baby formula; (2) "medical food" as defined under the Orphan Drug Act; (3) any product that is milk by more than 50% of volume; (4) any product that is fresh fruit, vegetable, or a combination more than 50% of volume; (5) unsweetened drinks to which sweetener can be added at the point of sale by the purchaser or seller; and (6) any syrup or other concentrate that the purchaser combines with other ingredients to create a beverage. Phila. Code § 19–4101(3)(c).

The PBT defines "dealer" as "[a]ny person engaged in the business of selling sugar-sweetened beverages for retail sale within the City" and defines "distributor" as "[a]ny person who supplies sugar-sweetened beverages to a dealer." Phila. Code § 19–4101(1), (2). The PBT states that "[n]o dealer may sell at retail, or hold out or display for sale at retail any sugar-sweetened beverage ... unless ... [t]he sugar-sweetened beverage was acquired by the dealer from a registered distributor; and ... [t]he dealer has complied with the notification requirements ... and received confirmation from the registered distributor of such notification, as well as confirmation that the distributor is a registered distributor ...." Phila. Code § 19–4102(1).

The PBT imposes a 1.5¢ per fluid ounce tax, generally payable by a distributor, "upon each of the following: the supply of any sugar-sweetened beverage to a dealer; the acquisition of any sugar-sweetened beverage by a dealer; the delivery to a dealer in the City of any sugar-sweetened beverage; and the transport of any sugar-sweetened beverage into the City by a dealer." Phila. Code § 19–4103(1), (2)(a). "The tax is imposed only when the supply, acquisition, delivery or transport is for the purpose of the dealer's holding out for retail sale within the City the sugar-sweetened beverage or any beverage produced therefrom." Phila. Code § 19–4103(1). The PBT is also imposed upon "the per ounce of syrup or other concentrate that yields [1.5¢] per fluid ounce on the resulting beverage, prepared to the manufacturer's specifications." Phila. Code § 19–4103(2)(b).

"The tax shall be paid to the City by the registered distributor; and the dealer shall not be liable to the City for payment of the tax; so long as the registered distributor has received from the dealer notification ... that the recipient is a dealer." Phila. Code § 19–4105(1). However, "a dealer who fails to provide the notification [of dealer status]; and a dealer who sells at retail, or holds out or displays for sale at retail, any sugar-sweetened beverage in violation of § 19–4102(1), shall be liable to the City for payment of any tax owing under this Chapter ...." Phila. Code § 19–4105(2).

Moreover, "[w]here a dealer is also a registered distributor, no additional tax shall be owing on the supply of any sugar-sweetened beverage by such dealer/distributor to another dealer if the tax already has been imposed on the supply or delivery of the beverage to the dealer/distributor or the acquisition of the beverage by the dealer/distributor." Phila. Code § 19–4105(3). Nevertheless, "[i]n the event that a court of competent jurisdiction rules in a decision from which no further appeal lies that any portion of this Chapter cannot be applied to a distributor ... then any dealer that holds out for retail sale in the City sugar-sweetened beverages ... shall be liable to the City for the tax on those sugar-sweetened beverages." Phila. Code § 19–4105(4).

The Ordinance further provides that "a violation of § 19–4102(1) (sale of product purchased from other than a registered distributor or without proper notification to a registered distributor) shall constitute a Class II Offense ... and each separate sale, transaction or delivery shall constitute a separate offense," but that "the Department may grant a full or partial waiver to a dealer from the provisions of § 19–4102(1)" "[u]pon a showing of extraordinary circumstances, where distribution channels would make purchase of sugar-sweetened beverage from a registered distributor substantially impracticable ...." Phila. Code §§ 19–4107(1), 19–4108(1).

In September 2016, Objectors filed the instant complaint in the trial court seeking declaratory and injunctive relief. In Count I, Objectors assert that the City's authority to enact the PBT under the statute commonly referred to as the Sterling Act is expressly preempted by Section 202(a) of the Pennsylvania Tax Reform Code of 1971 (Tax Code) imposing a tax on the retail sale of "soft drinks" (Sales Tax) because the Sterling Act precludes the imposition of a tax on the same subject of the state tax. In Count II, Objectors contend that the PBT is implicitly preempted because it conflicts with Sections 201(k)(8) of the Tax Code precluding a tax on the resale of "soft drinks," and 202(a) by obstructing the Commonwealth's collection of the tax and reducing the amount of tax collected. In Count III, Objectors submit that the PBT is implicitly preempted because it conflicts with Section 2013(a) of the federal Food Stamp Act, the federal regulations related thereto, and Section 204(46) of the Tax Code prohibiting the imposition of a tax on items purchased with food stamps. In Counts IV through VII, Objectors also claim that the PBT violates the Uniformity Clause of Article 8, Section 1 of the Pennsylvania Constitution because it is non-uniform and creates unequal burdens at the retail price and distributor levels; creates an unreasonable class of distributor taxpayers and imposes an unequal burden across the class; is non-uniform and creates an unequal burden across a class of retailers; and is non-uniform and creates unequal burdens across the class of consumers.

The City filed preliminary objections to the complaint, alleging that: (1) the Sterling Act expressly authorizes and does not preempt the PBT; (2) the PBT does not conflict with the Tax Code regarding retail sales; (3) the PBT does not conflict with the prohibition on collecting tax on purchases made with federal supplemental nutrition assistance program (SNAP) benefits; (4) the trial court was without jurisdiction to consider the SNAP benefits claim because it was a question for the Secretary of the Department of Agriculture (USDA); and (5) Objectors fail to state a claim that the PBT violates the Uniformity Clause.

In December 2016, the trial court issued an order and opinion disposing of the City's preliminary objections. The trial court first sustained the preliminary objections to Counts I and II of the complaint and dismissed those counts, holding that the PBT is expressly authorized by the Sterling Act and is not duplicative of the Sales Tax so it is not expressly or impliedly preempted. The court stated that "[t]he purpose of the Sterling Act is to prohibit double-taxation where two governmental units, the state and its political subdivision, are seeking revenue from a tax or license fee on the same base. However, merely because a business is taxed on a certain aspect of its operations by the Commonwealth, the Sterling Act does not preclude a tax by a political subdivision on a different aspect of its operations." Trial Court 12/19/16 Opinion at 5 (footnote omitted). The court explicated:

In determining whether a tax duplicates another tax and results in double taxation, the incidence of the two taxes is controlling. The incidence of tax embraces the subject matter thereof and more importantly, the measure of the

tax, i.e. the base or yardstick by which the tax is applied. If these elements inherent in every tax are kept in mind, the incidence of the two taxes may or may not be duplicative. Applying this test to the instant matter, this court finds as a matter of law that the PBT is not duplicative of the Commonwealth's Sale and Use Tax and is therefore not preempted. This conclusion is not only supported by the language of the PBT, but also by the longstanding legal precedent addressing duplication.

Id. at 5–6.

The court noted that "[t]he PBT is a tax on the distribution of [sugar-sweetened beverages] on a per ounce basis and legal liability to pay the tax remains on distributors and, in certain instances, dealers," while "[t]he Commonwealth's [Sales Tax] is a 6% tax on the 'sale at retail of tangible property or services' " which "is applied to the purchase price of retail sales of personal property and legal liability to pay the tax falls on the consumer." Trial Court 12/19/16 Opinion at 6 (footnote omitted). The court explained that "[t]he respective taxes apply to two different transactions, have two different measures and are paid by different taxpayers" because "[t]he subject of the PBT is a non-retail, distribution level tax on [sugar-sweetened beverages];" it "is only triggered when the [sugar-sweetened beverages] are distributed by the distributor, irrespective of whether the dealer sells the product to the consumer;" and "[t]he tax is measured by the volume of fluid ounces of the [sugar-sweetened beverage] and is imposed on the distributor." Id. The court stated that, in contrast, "the Commonwealth's [Sales Tax] is imposed on a sale at the retail level, is measured by the purchase price of the retail sale and is paid by the consumer." The trial court rejected Objectors' assertion "that the incidence of the tax is the same because the PBT will cause the distributor to pass the economic burden of the tax onto the dealer who will then pass the economic burden to the consumer" because "the ultimate economic burden of the tax may be imposed upon the purchaser-consumer, but the legal incidence is on the distributor." Id. at 7, 8.

The trial court sustained the City's preliminary objection to Count III of the complaint and dismissed that count, holding that the PBT is not implicitly preempted by the Section 2013(a) of the federal Food Stamp Act, its regulations, and Section 204(46) of the Tax Code. The court stated:

The scope of SNAP is limited to the "purchase [of] food from retail food stores." The PBT is not a sales tax on the consumer, but rather a tax on the distributor. [T]he incidence of taxation is assessed by examining the statute's intended taxpayer, and not the economic impact of the tax. Under the plain terms of the PBT, the tax is not collected upon "purchases" at "retail" made with food stamps, but only upon non-retail, distributor-level transactions. Since the PBT's incidence of taxation is not on the consumer and the tax is not paid using SNAP benefits, the PBT is not preempted.

Trial Court 12/19/16 Opinion at 9–10 (footnotes omitted and emphasis in original).

Finally, the trial court sustained the City's preliminary objections to Counts IV through VII and dismissed those counts, holding that the PBT does not violate the Uniformity Clause. The court noted that Objectors "allege that the PBT is not uniform because it falls on four different classes, soft drinks, distributors, retailers and consumers, on an unequal basis," and "that the PBT results in an enormous range of tax burdens across the classes subject to the tax because it imposes a flat tax per unit of volume regardless of the market price or wholesale price of the [sugar-sweetened beverage]." Trial Court 12/19/16 Opinion at 10. "However, [the court set forth,] the only classes created by the PBT are distributors and arguably [sugar-sweetened beverages] which are one and the same for purposes of this analysis," and that "[t]he consumer and retailer classes identified by [Objectors] are not classes created by the PBT and are, therefore, not subject to tax liability under the PBT." Id.

The court stated that "[t]he PBT's manner and measure of calculating the tax is uniformly applied to distributors" because "[t]he PBT levies a tax on per fluid ounce of [sugar-sweetened beverages] distributed in the City to dealers at a rate of 1.5 cents per ounce." Id. at 12–13. As a result, the court held that "all distributors are subject to the same tax calculation formula and therefore no disparate treatment exists within a distributor class in regard to the formula and rate of tax." Id. at 13. The court explained that the PBT "is not a property tax since the legal incidence of the tax is based on the privilege of distributing [sugar-sweetened beverages] in [the City]" so "it need not be assessed ad valorum " and it does not violate the Uniformity Clause. Id. at 13–14. Based on its dismissal of all counts of the complaint, the trial court also dismissed as moot Objectors' request for a special injunction and Objectors filed the instant appeals of the trial court's orders. ^,

I.

Objectors first claim that the trial court erred in holding that the PBT is expressly authorized by the Sterling Act and erred in concluding that it is not expressly or impliedly preempted by state law. Specifically, Objectors assert that the incidence of the PBT is impermissibly duplicative of the Sales Tax imposed under the Tax Code so it is not authorized under the Sterling Act. Objectors also contend that the PBT is preempted by the Tax Code because it subverts the exception in Section 201(k) relating to the resale of items at retail.

As the Pennsylvania Supreme Court has explained:

The matter of preemption is rooted in the relationship between the constitutional provisions vesting the legislative power of the Commonwealth in the General Assembly, Article II, Section 1, and providing for local government, Article IX, Section 1. In providing for the general welfare of the Commonwealth's citizens, the General Assembly may choose to leave a subject open to control by local governmental bodies, it may enact laws of statewide application that simultaneously allow for local regulation, or local ordinances may be prohibited entirely.

There is generally no difficulty of application where a statute explicitly removes a given subject from local control. Similarly, where some local regulation is permitted its outer bounds can usually be clearly determined; municipal ordinances are valid if they are not contradictory to or inconsistent with the statutory law. In such situations any questions are readily resolved because, almost by definition, the intention of the General Assembly is plain. Difficulties arise only when the legislative intent is not explicit but must be inferred.

City of Philadelphia v. Clement & Muller, Inc. , 552 Pa. 317, 715 A.2d 397, 398 (1998).

As the Court further explicated:

In Department of Licenses and Inspections, Board of License and Inspection Review v. Weber , 394 Pa. 466, [147 A.2d 326 (1959) ], this Court explained two of the three closely related forms of preemption as follows:

Of course, it is obvious that where a statute specifically declares it has planted the flag of preemption in a field, all ordinances on the subject die away as if they did not exist. It is also apparent that, even if the statute is silent on supersession, but proclaims a course of regulation and control which brooks no municipal intervention, all ordinances touching the topic of exclusive control fade away into the limbo of 'innocuous desuetude.'

Id. at 327. In addition to those two forms of preemption, respectively "express" and "field preemption," there is also a third, "conflict preemption," which acts to preempt any local law that contradicts or contravenes state law. See Mars Emergency Med. Servs. v. Township of Adams , 559 Pa. 309, [740 A.2d 193, 195 (1999) ] (citing, inter alia, W. Pennsylvania Rest. Ass'n v. Pittsburgh , 366 Pa. 374, [77 A.2d 616, 619–20 (1951) ] ).

Nutter v. Dougherty , 921 A.2d 44 (Pa. Cmwlth.), aff'd , 595 Pa. 340, 938 A.2d 401, 406 (2007). As stated above, Section 1(a) of the Sterling Act empowers the City "to levy, assess and collect ... such taxes on ... transactions, ... privileges, subjects and personal property ... as it shall determine except that [it] shall not have authority to levy, assess and collect ... any tax on a privilege, transaction, subject ... or on personal property, which is now or may hereafter become subject to a State tax ...." 53 P.S. § 15971. Thus, "[u]nder the Sterling Act ... the city has broad powers to levy taxes for revenue purposes." Blauner's v. City of Philadelphia , 330 Pa. 342, 198 A. 889, 891 (1938). Nevertheless, the above-cited provision "was intended to prevent double taxation of the same thing; in other words, the city was instructed that it could not tax subjects taxed by the state. ... If, therefore, the tax proposed to be collected pursuant to the [Sterling Act] results in such double taxation, it is unauthorized and must be restrained." Murray v. City of Philadelphia , 364 Pa. 157, 71 A.2d 280, 284 (1950).

In Pocono Downs, Inc. v. Catasauqua Area School District , 669 A.2d 500, 502 (Pa. Cmwlth. 1996), quoting Commonwealth v. National Biscuit Co. , 390 Pa. 642, 136 A.2d 821, 825–26 (1957), appeal dismissed , 357 U.S. 571, 78 S.Ct. 1383, 2 L.Ed.2d 1547 (1958), this Court stated:

In determining whether a tax duplicates another tax and results in double taxation prohibited to local taxing authorities, the operation or incidence of the two taxes is controlling as against mere differences in terminology from time to time employed in describing taxes in various cases. The incidence of a tax embraces the subject matter thereof and, more important, the measure of the tax, i.e. , the base or yardstick by which the tax is applied. If these elements inherent in every tax are kept in mind, the incidence of the two taxes may or may not be duplicative. [ (Emphasis in original).]

However, a tax's "operation or incidence" refers to the substantive text of the ordinance and does not concern the post-tax economic actions of private actors in response to the imposition of the PBT. See, e.g., Gurley v. Rhoden , 421 U.S. 200, 204, 95 S.Ct. 1605, 44 L.Ed.2d 110 (1975) (citations omitted) ("[T]he decision as to where the legal incidence of either tax falls is not determined by the fact that petitioner, by increasing his pump prices in the amounts of the taxes, shifted the economic burden of the taxes from himself to the purchaser-consumer. The Court has laid to rest doubts on that score ... at least under taxing schemes, as here, where neither statute required petitioner to pass the tax on to the purchaser-consumer.").

As noted above, under Sections 19–4102(1) and 19–4105(1) of the Philadelphia Code, the PBT is paid by a distributor and a dealer is not liable so long as the dealer notifies the distributor, receives confirmation of that notification, and receives notification that the distributor is a registered distributor. Section 19–4105 outlines the circumstances under which a dealer may assume a distributor's PBT liability, but there is no provision in the Philadelphia Code that ever shifts liability for the PBT to the ultimate purchaser at retail. Likewise, Example 2 of the Regulations, at page 19, explains that "[t]he tax is not a sales tax; the tax is imposed upon the supply of the [sugar-sweetened beverage] to the Dealer or the acquisition of the [sugar-sweetened beverage] by the Dealer, not upon the sale of [the sugar-sweetened beverage] by the Dealer to its customers." The subject matter of the tax, the non-retail distribution of sugar-sweetened beverages for sale at retail in the City, and the measure of the tax, per ounce of sugar-sweetened beverage, are distinct from the Sales Tax imposed under the Tax Code upon the retail sale of the sugar-sweetened beverage to the ultimate purchaser. Thus, the dissent's claim that the PBT is duplicative of the Sales Tax is incorrect.

Likewise, Objectors' claim that the PBT may be refunded if the sugar-sweetened beverage is not ultimately sold at retail is not correct. While Section 19–4107(1) states that "the Department may grant a full or partial waiver to a dealer from the provisions of § 19–4102(1)" "[u]pon a showing of extraordinary circumstances, where distribution channels would make purchase of sugar-sweetened beverage from a registered distributor substantially impracticable ...," there is no indication that the non-sale of a sugar-sweetened beverage is such an "extraordinary circumstance" warranting a refund of the PBT. Section 501(f) of the Regulations states:

When a Taxpayer discovers an overpayment of tax, the Taxpayer shall file an amended return to claim a credit or, if the Taxpayer is no longer required to file a [P]BT return, the Taxpayer will be entitled to claim a refund of the overpaid [P]BT. A credit or refund may be claimed only if the later filed [sugar-sweetened beverage] return or refund claim is filed by the Taxpayer no later than three (3) years after the later of the date of payment of the overpaid [P]BT or the due date for such payment.

As outlined above, the PBT taxes non-retail distribution transactions and not retail sales to a consumer. As a result, the PBT does not violate the duplicative-tax prohibition in the Sterling Act or encroach upon a field preempted by the Sales Tax because the taxes do not share the same incidence and merely have related subjects. As the Supreme Court has explained, "in several cases the United States Supreme Court has upheld taxes on the use of personal property as a form of excise tax. " John Wanamaker v. School District of Philadelphia , 441 Pa. 567, 274 A.2d 524, 526 (1971) (citations omitted). Based on this precedent, the Court held that the City's business use and occupancy tax imposed on the use or occupancy of real estate for commercial or industrial activity was not an impermissible direct tax on the real estate because the tax liability flowed from the voluntary election by the owner to use the real property in a certain manner. Id. at 526–28.

In Blauner's, Inc. , 198 A. at 891, the Supreme Court held that a City ordinance imposing a sales tax did not "invade the field pre-empted by the Commonwealth" under a capital stock tax because "the ordinance taxes neither the same subject nor the same person as the State taxes referred to." The Court also held that the ordinance did not impermissibly duplicate the state net income tax:

We have held an income tax to be a property tax, and the corporate net income tax specifically to be such[.] The sales tax and the net income tax vary widely. The former is an excise tax on sales and services; the latter is a property tax upon income from any source. The former is a tax on "transactions," whereas the latter is a tax on "property." The persons taxed are wholly different. The sales tax is imposed upon the purchaser or consumer; the net income

tax is on the corporation receiving the income.

Id. (citations omitted).

The Court also held that the ordinance did not invade the field preempted by the state mercantile license tax, stating:

The state mercantile license tax and the city sales tax are similar in that they are both excises, but the similarity goes no further. The city tax is a levy on sales, the state tax is a levy imposed for the privilege of conducting a particular kind of business, albeit the amount of the tax is measured by gross sales. The sales tax is imposed upon the transaction whereby the property is acquired; the mercantile tax is an imposition for the privilege of doing business.

Id. at 892. The Court concluded "that the city sales tax ordinance and the Mercantile License Tax Act do not tax the same subject, nor the same person, and that the field covered by the ordinance had not been preempted by the mercantile license tax." Id. Correspondingly, in this case, the PBT and the Sales Tax do not tax the same subject, or the same person, and the field covered by the PBT has not been preempted by the Sales Tax.

Finally, Objectors' argument that the exception of "transfer[s] ... for the purpose of resale" from the application of the Sales Tax in Section 201(k) of the Tax Code somehow limits the City's authority to enact the PBT under the Sterling Act is unpersuasive. In Provident Mutual Life Insurance Company v. Tax Review Board , 750 A.2d 942 (Pa. Cmwlth. 2000), Provident Life Insurance Company (Provident) merged with Covenant Life Insurance Company (Covenant) which held mortgages on a number of properties in the City. After Provident subsequently acquired the properties by deed in lieu of foreclosure, the City assessed a realty transfer tax pursuant to Section 19–4103(1) of the Philadelphia Code. Provident sought a refund of the tax, asserting that the transfers were exempt under Section 19–4105(14) of the Philadelphia Code, but the City's Tax Review Board found that the tax exclusion did not survive Provident's merger with Covenant and the exclusion was not available to Provident. On appeal, the trial court affirmed.

On further appeal to this Court, Provident argued, inter alia , that the City did not have the authority to impose the tax under Section 1301(b) of the Local Tax Reform Act or the Sterling Act because the transfer of realty as in that case is specifically exempt from the state real estate transfer tax under Section 1102–C.3(16) of the Tax Code. We rejected Provident's arguments, explaining:

The [trial] court addressed the City's authority to tax under the Sterling Act and did not find Provident's argument persuasive. The [trial] court noted that this Court previously addressed this issue. In Equitable Life Assurance Soc. v. Murphy , 153 Pa.Cmwlth. 338, [621 A.2d 1078 (1993) ], this Court held that the Sterling Act authorized the City to tax a transfer of stock in a real estate corporation when the real estate owned by the corporation was located within the City where the City had a real estate transfer tax in place. Although the present situation is not identical, it is similar insofar as the City has enacted a real estate transfer tax and has taxed a transfer of real estate within the City.

Further, we cannot agree that because a particular transaction is mentioned but not specifically designated as taxable in the [Tax Code] that this means the City has no authority to tax the transaction under Section 1301(b)(2) of the [Local Tax Reform] Act. Section 1301(b)(2) provides that the City may impose a local real estate transfer tax upon additional classes or types of transactions if the real estate transfer tax is imposed pursuant to the Sterling Act. Section 1 of the Sterling Act provides that the City may tax transactions within

the City if that transaction is not "subject to a State tax or license fee." 53 P.S. § 15971(a).

Here, this transaction is not subject to a state tax or license fee because this transaction, the transfer of property from a mortgagor to the holder of the mortgage through a deed in lieu of foreclosure, is specifically exempt from the state realty transfer tax as contained in the [Tax Code] as enacted by the General Assembly. Therefore, because this transaction is not subject to a state tax, the City may levy the Tax on this class of transaction, the conveyance of property through a deed in lieu of foreclosure, pursuant to the Sterling Act and in compliance with Section 1301(b)(2) of the Local Tax Reform Act. Further, the General Assembly did not explicitly state that a Tax on this transaction is prohibited. To the contrary, the General Assembly granted broad authority to the City to tax under the Local Tax Reform Act and the Sterling Act. The [trial] court properly rejected the proposition that the City exceeded its authority by assessing the Tax.

Provident Mutual Life , 750 A.2d at 946. Based on the foregoing, it is clear that the exception contained in Section 201(k) of the Tax Code does not limit the City's authority to enact the PBT under the Sterling Act.

In sum, the trial court did not err in determining that the City was empowered to enact the PBT under the Sterling Act and Objectors' claims that the City's authority in this regard is explicitly or impliedly preempted by Commonwealth statutes are without merit. As a result, the trial court did not err in sustaining the City's preliminary objections to Counts I and II of the complaint and dismissing those counts.

II.

Objectors next claim that the trial court erred in holding that the PBT is not implicitly preempted by the Section 2013(a) of the federal Food Stamp Act, its regulations, and Section 204(46) of the Tax Code, which preclude the imposition of a tax on items purchased at retail with food stamps. Objectors assert that the PBT's conflict with this state-law exemption jeopardizes the Commonwealth's eligibility to participate in the federal program and erodes the purchasing power of those Objectors who use food stamps to purchase groceries.

As stated above, Section 2013(a) of the Food Stamp Act states, in relevant part, that "States may not participate in [the program] if the Secretary determines that State or local sales taxes are collected within that State on purchases of food made with [program] benefits." 7 U.S.C. § 2013(a). Likewise, Section 272.1(b) of the federal regulations provides:

A State shall not participate in the Food Stamp Program if State or local sales taxes or other taxes or fees, including

but not limited to excise taxes, are collected within the State on purchases made with food stamp coupons. ... State and/or local law shall not permit the imposition of tax on food paid for with coupons. [The USDA's Food and Nutrition Service] may terminate the issuance of coupons and disallow administrative funds otherwise payable ... in any State where such taxes are charged.

7 C.F.R. § 272.1(b)(1), (2). To this end, the General Assembly enacted Section 204(46) of the Tax Code which prohibits the imposition of the Sales Tax under Section 202 on the sale of goods purchased with food stamps. 72 P.S. §§ 7202, 7204(46).

Section 2020(g) of the Food Stamp Act empowers the federal government to enforce the foregoing provisions. Nevertheless, as a United States District Court has explained:

A number of courts have recognized an implied private right of action to enforce provisions of the Food Stamp Act, but the defendants in all of these cases were public officials, and the plaintiffs were all individuals who had been denied Food Stamp benefits. See, e.g., Victorian v. Miller , 813 F.2d 718, 720–21, 724 n. 13 (5th Cir. 1987) (action against Texas Department of Human Services officials); Haskins v. Stanton , 794 F.2d 1273, 1274 (7th Cir. 1986) (holding indigent persons denied food stamp benefits had "a private right of action to enforce compliance with the Food Stamp Act by ... state officials"); Johnson v. Madigan , [ (N.D. Ga., Civ. A. No. 1:91–CV1412MHS, filed March 26, 1992), slip op. at 2–4, 1992 WL 80952] (action against Secretary of Agriculture and Commissioner of Georgia's Department of Human Resources); Dubuque v. Yeutter , 728 F.Supp. 303, 304–05 (D. Vt. 1989) (action against Secretary of the U.S. Department of Agriculture and the Commissioner of Vermont's Department of Social Welfare).

Plaintiff has not cited, and research has not disclosed, any case in which a court has found that a food stamp recipient has a private right of action under the Food Stamp Act against a retail food store participating in the Food Stamp Program.

Posr v. City of New York , (S.D.N.Y., No. 11 Civ 986 (PGG)), filed September 25, 2012), slip op. at 10, 2012 WL 4378049.

Objectors' claims in the instant matter are without merit because the federal statute and regulations only prohibit the imposition of a tax on retail purchase transactions, and not a tax on non-retail distribution transactions within the reach of the PBT. As outlined above, the PBT is never "collected" upon "purchases" at "retail," let alone transactions "made with [program] benefits;" the PBT is only collected from either distributors or dealers upon distribution transactions, and no recipient of program benefits is ever liable for the payment of the PBT. The fact that the PBT may be passed on to recipients through higher retail prices does not alter the incidence of the PBT nor transform it into a prohibited tax within the purview of Section 2013(a) of the Food Stamp Act, its regulations, or Section 204(46) of the Tax Code.

Moreover, the City has no responsibility for regulating either distributors or dealers with respect to the Food Stamp Act, see 7 U.S.C. §§ 2020, 2021 (outlining the federal and state responsibilities under the Food Stamp Act), and Objectors do not allege any special relationship between the City and the distributors and dealers upon whom the PBT is imposed. The trial court properly concluded that "[s]ince the PBT's incidence of taxation is not on the consumer and the tax is not paid using SNAP benefits, the PBT is not preempted." Trial Court 12/19/16 Opinion at 10. As a result, the trial court did not err in sustaining the City's preliminary objection to Count III of the complaint and dismissing that count.

III.

Objectors next claim that the trial court erred in holding that the PBT does not violate the Uniformity Clause of the Pennsylvania Constitution because it is a property tax based on the dealers' inventory of covered beverages and that a property tax violates the Uniformity Clause if "it is imposed on a quantity and not an ad valorem basis." In re Lawrence Township School District 1947 Taxes , 362 Pa. 377, 67 A.2d 372, 383 (1949) citing Commonwealth ex rel. Department of Justice v. A. Overholt & Co. , 331 Pa. 182,200 A. 849, 852 (1938).

However, Objectors' argument in this regard is based on the faulty premise that the PBT is a property tax. As stated above in footnote 17, the PBT is an excise tax "imposed only when the supply, acquisition, delivery [of a sugar-sweetened beverage to a dealer] or transport [of a sugar-sweetened beverage into the City by a dealer] is for the purpose of the dealer's holding out for retail sale within the City the sugar-sweetened beverage or any beverage produced therefrom." Phila. Code § 19–4103(1). Likewise, Section 201 of the Regulations states:

[The PBT] is imposed upon each of the following: the supply of any [sugar-sweetened beverage] to a Dealer; the acquisition of any [sugar-sweetened beverage] by a Dealer; the delivery to a Dealer in the City of any [sugar-sweetened beverage]; and the transport of any [sugar-sweetened beverage] into the City by a dealer. The tax shall be imposed only once with respect to any individual item of [sugar-sweetened beverage]. The tax is imposed only when the supply, acquisition, delivery or transport is for the purpose of the Dealer's holding out for retail sale within the City either the [sugar-sweetened beverage] or a beverage produced therefrom.

The PBT is not imposed on the ownership of the sugar-sweetened beverages or on their sale; rather, it is only imposed if the beverages are supplied, acquired, delivered, or transported for purposes of holding them out for retail sale in the City. As a result, the PBT is properly assessed at a specific rate per fluid ounce of sugar-sweetened beverage or its equivalent and not on an ad valorem basis. See, e.g., South Union Township v. Commonwealth , 839 A.2d 1179, 1191 (Pa. Cmwlth. 2003) ("Each 'operator of a municipal waste landfill [pays] ... a disposal fee of $4 per ton for all solid waste disposed ....' 27 Pa. C.S. § 6301(a). Petitioners have simply not pleaded facts to show that this disposal fee is not imposed uniformly or that the classification clearly, palpably, and plainly violates the Constitution. Petitioners' unsupported, conclusory allegations are insufficient to overcome the strong presumption of constitutionality.") (citation omitted and emphasis in original); Blair Candy Co., Inc. , 613 A.2d at 161 ("The cigarette tax is an excise tax imposed at the specific rate of one and fifty-five hundredths of a cent per cigarette. Therefore, the cigarette tax is a specific tax, imposed at a stated dollar amount per item. By contrast, the Pennsylvania sales tax as set forth in Article II of the [Tax Code] is an ad valorem tax imposed on each separate sale at retail of tangible personal property or services at a rate of six percent of the purchase price to be collected by the vendor.") (emphasis in original). Based on the foregoing, the trial court did not err in sustaining the City's preliminary objections to Counts IV through VII of Objectors' complaint and dismissing those counts.

IV.

Finally, Objectors claim that the trial court erred in denying their request for a special injunction. In general:

Although the former equity rules made minor distinctions between "special" and "preliminary" injunctions, the current Rules of Civil Procedure treat them exactly alike and the words are used interchangeably.

A special injunction, like a preliminary injunction, is commonly sought to preserve the status quo until the final hearing. A special injunction may be asked for during the pendency of an equity action, and it may be granted at any stage of the proceedings, whenever it is necessary to preserve the status quo.

15 Standard Pennsylvania Practice 2d § 83:11 (2017) (footnotes omitted).

The essential prerequisites for the issuance of such an injunction are as follows:

(1) the injunction is necessary to prevent immediate and irreparable harm that cannot be compensated adequately by damages; (2) greater injury would result from refusing the injunction than from granting it, and, concomitantly, the issuance of an injunction will not substantially harm other interested parties in the proceedings; (3) the preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; (4) the party seeking injunctive relief has a clear right to relief and is likely to prevail on the merits; (5) the injunction is reasonably suited to abate the offending activity; and, (6) the preliminary injunction will not adversely affect the public interest.

SEIU Healthcare Pa. v. Commonwealth , 628 Pa. 573, 104 A.3d 495, 502 (2014) (citing Warehime v. Warehime , 580 Pa. 201, 860 A.2d 41, 46–47 (2004) ). Because the grant of a preliminary injunction is an extraordinary remedy, the failure to establish a single prerequisite requires the denial of the request for an injunction. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc. , 573 Pa. 637, 828 A.2d 995, 1000 (2003).

As outlined above, Objectors cannot prevail on the merits of their claims regarding the purported invalidity of the PBT. As a result, Objectors were not entitled to the requested injunctive relief and the trial court had apparently reasonable grounds for denying Objectors' request.

Accordingly, the trial court's orders are affirmed.

ORDER

AND NOW, this 14^th day of June , 2017, the orders of the Philadelphia County Court of Common Pleas dated December 19, 2016, at No. September Term, 2016 No. 01452, are AFFIRMED.

DISSENTING OPINION BY JUDGE COVEY

I respectfully dissent from the Majority's conclusion that "the [portion of the Philadelphia Code known as the Philadelphia Beverage Tax (]PBT[) ] does not violate the duplicative-tax prohibition in [the statute commonly referred to as] the Sterling Act^{[ ]} or encroach upon a field preempted by the [Commonwealth's tax on the retail sale of soft drinks (]Sales Tax[) ] because the [PBT and the Sales T]ax[ ] do not share the same incidence and merely have related subjects." Majority Op. at 588 (emphasis added).

While I acknowledge that the PBT does not appear to be duplicative of the Sales Tax because it is not explicitly labeled a retail sales tax, the Majority ignores that the PBT is only triggered when there is a retail sale involved. The Majority states: "[A] tax's 'operation or incidence' refers to the substantive text of the ordinance and does not concern the post-tax economic actions of private actors in response to the imposition of the PBT." Majority Op. at 586. A review of the PBT in its entirety reveals that it is in fact duplicative of the Sales Tax. "To learn and give effect to the legislative intention expressed in a statute or ordinance is the cardinal objective of construction. An ordinance must be construed as an entirety, and the legislative intention that is contained within it must be determined accordingly, and not from a part thereof. " Detweiler v. Derry Twp. Mun. Auth. , 29 Pa.Cmwlth. 277, 370 A.2d 810, 812 n.2 (1977) (emphasis added; citations omitted); see also Snyder Bros., Inc. v. Pa. Pub. Util. Comm'n , 157 A.3d 1018 (Pa. Cmwlth. 2017).

When considering the relevant portions of the PBT and the Pennsylvania Tax Reform Code of 1971 (Tax Code), it is important to be mindful of what constitutes a "tax." "Tax" is defined as: "A charge, usu[ally] monetary, imposed by the government on persons, entities, transactions, or property to yield public revenue. Most broadly, the term embraces all governmental impositions on the person, property, privileges, occupations, and enjoyment of the people, and includes duties, imposts, and excises." Black's Law Dictionary 1594 (9th ed. 2009) (emphasis added).

Section 202(a) of the Tax Code provides:

There is hereby imposed upon each separate sale at retail of tangible personal property or services, as defined herein, within this Commonwealth a tax of six per cent of the purchase price, which tax shall be collected by the vendor from the purchaser, and shall be paid over to the Commonwealth as herein provided.

72 P.S. § 7202(a) (emphasis added). Section 19–4103(1) of the PBT mandates:

a tax is imposed upon each of the following: the supply of any sugar-sweetened beverage to a dealer; the acquisition of any sugar-sweetened beverage by a dealer; the delivery to a dealer in the City [of Philadelphia (City) ] of any sugar-sweetened beverage; and the transport of any sugar-sweetened beverage into the City by a dealer. The tax is imposed only when the supply, acquisition, delivery or transport is for the purpose of the dealer's holding out for retail sale within the City the sugar-sweetened beverage or any beverage produced therefrom. The tax is to be paid as provided in [Section 4105 of the PBT, Phila. Code] § 19–4105 (liability for payment of tax) and [Section 4107 of the PBT, Phila. Code] § 19–4107 (waivers).

Phila. Code § 19–4103(1) (italic and bold emphasis added). Section 19–4105(1) of the PBT states: "The tax shall be paid to the City by the registered distributor; and the dealer shall not be liable to the City for payment of the tax; so long as the registered distributor has received from the dealer notification ... that the recipient is a dealer." Phila. Code § 19–4105(1) (emphasis added).

However, the PBT defines a dealer as: "Any person engaged in the business of selling sugar-sweetened beverage for retail sale within the City, including but not limited to restaurants; retail stores; street vendors; owners and operators of vending machines; and distributors who engage in retail sales [,]" and distributor as: "Any person who supplies sugar-sweetened beverage to a dealer. " Phila. Code § 19–4101(1), (2) (italic and bold emphasis added). Section 19–4102 of the PBT further declares:

(1) No dealer may sell at retail , or hold out or display for sale at retail , any sugar-sweetened beverage acquired by the dealer on or after January 1, 2017, unless :

(a) The sugar-sweetened beverage was acquired by the dealer from a registered distributor; and

(b) The dealer has complied with the notification requirements of [Section 19–4104 of the PBT, Phila. Code] § 19–4104; and received confirmation from the registered distributor of such notification, as well as confirmation that the distributor is a registered distributor, all in form prescribed by the Department.

Phila. Code § 19–4102 (italic and bold emphasis added). Thus, a distributor is only taxed if the sugar-sweetened beverage is held out for retail sale , and no dealer can sell a sugar-sweetened beverage at retail unless the tax has been paid.

In interpreting the ordinance as a whole, like we must, its entire underpinning is the retail sale mandate. The PBT contains only eight sections; one section provides definitions, one speaks to administration and one refers to waivers. Each of the remaining five sections states that the tax can only be imposed in relation to the retail sale of sugar-sweetened beverages. Accordingly, the PBT implicates both supply and sale at retail, making the PBT a duplicative tax.

Relevantly, the Majority focuses on the fact that the distributor is taxed; thus, isolating the incidence of the tax to the distribution. However, Section 19–4105(4) of the PBT provides:

In the event a court of competent jurisdiction rules in a decision from which no further appeal lies that any portion of this Chapter cannot be applied to a distributor with respect to any transaction or class of transactions, then any dealer that holds out for retail sale in the City sugar-sweetened beverages supplied through those transactions shall be liable to the City for the tax on those sugar-sweetened beverages.

Phila. Code § 19–4105(4) (italic and bold emphasis added). In addition, if the dealer does not provide the distributor the required notice, the dealer is liable to pay the tax. See Phila. Code § 19–4105. Moreover, Section 19–4107(1) of the PBT states:

Upon a showing of extraordinary circumstances, where distribution channels would make purchase of sugar-sweetened beverage from a registered distributor substantially impracticable, the Department, in its discretion, may grant a full or partial waiver to a dealer from the provisions of [Section 4102(1) of the PBT, Phila. Code] § 19–4102(1). In such case, as well as during the pendency of any application for waiver under this subsection, the tax shall be paid directly by the dealer to the Department, in such manner and using such forms as the Department shall prescribe. The Department may require an annual demonstration of continuing

extraordinary circumstances in order to continue a waiver.

Phila. Code § 19–4107(1) (emphasis added). Finally, Section 19–4103(1) of the PBT clearly states that the liability for payment of the tax, and thus, the target of the tax is the "dealer's holding out for retail sale." Phila. Code § 19–4103(1). Section 19–4105 of the PBT reads, in pertinent part:

(1) The tax shall be paid to the City by the registered distributor; and the dealer shall not be liable to the City for payment of the tax; so long as the registered distributor has received from the dealer notification pursuant to § 19–4104(1) that the recipient is a dealer.

(2) In addition to any penalties provided hereunder, a dealer who fails to provide the notification required by § 19–4104(1); and a dealer who sells at retail, or holds out or displays for sale at retail, any sugar-sweetened beverage in violation of § 19–4102(1), shall be liable to the City for payment of any tax owing under this Chapter, and shall file returns with the Department in form prescribed by the Department.

Phila. Code § 19–4105 (italic and bold emphasis added). In the same vein of capturing the tax when the sugar-sweetened beverage is intended for retail sale, Section 19–4108 of the PBT mandates:

In addition to any other penalties provided under this Title, a violation of [Section] 19–4102(1) [of the PBT] (sale of product purchased from other than a registered distributor or without proper notification to a registered distributor) shall constitute a Class II Offense under 1–109; and each separate sale, transaction or delivery shall constitute a separate offense.

Phila. Code § 19–4108 (emphasis added). Thus, the clear wording of the PBT evidences that the "distributor" is not in fact the target of the tax. Contrary to the Majority's conclusion that the PBT is a "distribution" tax, the PBT is a tax imposed only where the sugar-sweetened beverage is sold or intended to be sold at retail , and the PBT is imposed regardless of whether there is a distributor involved. Majority Op. at 588 (emphasis added). Consequently, the "distribution" is not the tax incidence as the Majority concludes. Id.

The Majority cites "Example 11 of the Regulations" (wherein a distributor is entitled to "a credit or refund" if sugar-sweetened beverages were purchased by the dealer with the intent to sell in the City but the beverages were actually sold outside of the City), to support its position that the existence of the refund does not make it a duplicative tax. Majority Op. at 587–88 n.18. However, that example buttresses the Dissent's position, i.e., no retail sale in the City equals no tax. Given that the tax will force retailers to sell sugar-sweetened beverages outside the City because of the PBT, the scenario in Example 11 is actually more likely than not. When a retailer cannot move his sugar-sweetened beverages in the City and is driven to sell them outside the City, the City will not get the tax (because the distributor will get a refund), just as no retail sales tax will be obtained if the beverages are not sold.

Importantly, unlike the ordinances reviewed in the cases cited by the Majority, the PBT is only triggered when a retail sale is involved, making this a case of first impression. See Gurley v. Rhoden , 421 U.S. 200, 95 S.Ct. 1605, 44 L.Ed.2d 110 (1975) ; John Wanamaker v. Sch. Dist. of Phila. , 441 Pa. 567, 274 A.2d 524 (1971) ; Blauner's v. City of Phila. , 330 Pa. 342, 198 A. 889 (1938) ; Provident Mutual Life Ins. Co. v. Tax Review Bd. , 750 A.2d 942 (Pa.Cmwlth. 2000) ; Pocono Downs, Inc. v. Catasauqua Area Sch. Dist. , 669 A.2d 500 (Pa. Cmwlth. 1996).

United Tavern Owners of Philadelphia v. School District of Philadelphia , 441 Pa. 274, 272 A.2d 868 (1971), is the only case that cannot be distinguished from the facts of the instant matter. Although as the Majority notes: " United Tavern , ... [is a] plurality opinion [that] has never been adopted by a majority of the Supreme Court[,]" it has never been overruled and remains good law. Majority Op. at 589 n.20. As in the present case, it was argued in United Tavern

that the ordinance in question does not violate the preemption provision of the Sterling Act because it is imposed on a different transaction than that on which the two state taxes are imposed. According to this argument[,] the local tax would be imposed on the transaction between the holder of the retail liquor license, i.e., the owner of the hotel or bar, and the consumer, whereas the state taxes are imposed on the transaction between the holder of the liquor license and his distributor, the state liquor store.

Id. at 873 (emphasis added). The Court rejected that argument, holding:

We do not accept this view. [It is] our view, the state taxes on liquor are classic sales taxes. The only reason that the definition of sales in the case of liquor is different from the definition with regard to other items covered by the sales tax is because the existence of a statewide system of state-operated distribution centers for liquor made it possible to assure effective collection of the tax by imposing the tax on the sale at the state store.

Id. While the case before us does not involve liquor, it does involve taxing the distributor "to assure effective collection of the tax[.]" Id. As in United Tavern , the imposition of the tax on the distributor does not change the nature of what is, in essence, a sales tax.

"[P]reliminary objections shall only be sustained when they are free and clear from doubt. " Petty v. Hosp. Serv. Ass'n of N.E. Pa. , 967 A.2d 439, 443 n.7 (Pa. Cmwlth. 2009) (emphasis added), aff'd , 611 Pa. 119, 23 A.3d 1004 (2011). Our Supreme Court has declared:

As [a] taxing statute[ ], [the PBT] must be strictly construed against the government, and any doubt or ambiguity in the interpretation of their terms must, therefore, be resolved in favor of the taxpayer. 1 Pa.C.S.[ ] § 1928; Skepton v. Borough of Wilson, 562 Pa. 344, 755 A.2d 1267, 1270 (2000).

Tech One Assocs. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cnty. , 617 Pa. 439, 53 A.3d 685, 696 (2012) (emphasis added).

Construing the PBT against the government as mandated, I would hold that the Commonwealth has preempted the field through the Sales Tax, and the PBT is invalid under the Sterling Act. Further, given that this matter is an issue of first impression and the obvious doubt as demonstrated by the numerous positions presented, the determination of whether the PBT is invalid under the Sterling Act is not "free and clear from doubt, " and therefore, the preliminary objections to Counts I and II of Appellants' Complaint should be overruled. Petty , 967 A.2d at 443 n.7 (emphasis added). This result is especially true here where the Majority does not cite with certainty to any legal authority squarely on point.

For all of the above reasons, I would reverse the trial court's order sustaining Appellees' preliminary objections and dismissing Appellants' Complaint, and remand the matter to the trial court for further proceedings.

Judge Cohn Jubelirer joins in this dissenting opinion.