Shopper sues Kmart in toilet tissue tax dispute

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Normally, debates over toilet paper aren't the kind of squabbles that land in the courtroom.

Should you buy single or double-ply? Quilted or rippled? Hang the tube so it unrolls from the top or from the bottom? Should you fluff or fold?

This time, it's different.

Murrysville homemaker Mary Bach is suing Kmart over a $3.99, 12-pack of Angel Soft toilet tissue.

Bottom line: She says the Kmart store on Mall Boulevard in Monroeville improperly collected 7 percent sales tax on what is a non-taxable item, charging her $4.27 -- or 28 cents too much.

Unlike the ultimate end for most rolls of toilet paper, Mrs. Bach's case seems cut and dried.

Although most paper goods are taxable under Pennsylvania's sales tax code, toilet tissue is clearly listed as a non-taxable item in the state Department of Revenue's sales tax guide.

"It's a black and white issue," Mrs. Bach said with indignation. "All toilet tissue is non-taxable. It has nothing to do with how it is printed, colored, sold or packaged."

Mrs. Bach says she actually was overcharged on toilet tissue at the same store twice.

The first time was the afternoon of Sept. 13. She said she complained to the cashier, who "just kind of shrugged." Because she was in a hurry, she left without pressing the matter.

Mrs. Bach says she decided to go back the next day to see if the store corrected the problem, but was charged sales tax again. She complained to a manager, but got no satisfaction.

Three days later, she filed a small claims suit in district court in Monroeville.

"I'm not going to mess around," she said.

A hearing is set for Oct. 31 before District Judge Jeffrey Herbst. Mrs. Bach is seeking $100 in damages, plus court costs, for violation of the state's Unfair Trade Practices and Consumer Protection Law. Under the law, plaintiffs can sue for the amount of the damages or $100, whichever is greater, she says.

For now, Kmart isn't talking. Spokeswoman Kim Freely said it was the Chicago-based company's policy not to comment on pending litigation.

Although going to court may seem like a lot of effort to recover pocket change, Mrs. Bach says she is looking at the broader picture.

"If a major national retailer makes this kind of error and overcharges one customer 28 cents, that literally could add up to hundreds of thousands of dollars" if repeated in stores across the state, she said, adding that she hasn't had the time to spot check other Kmarts.

This isn't the first time Mrs. Bach has headed to court to tussle with a major retailer.

A self-styled consumer advocate who heads AARP's Pennsylvania consumer issues task force, she has been crusading against price scanner errors for nearly 25 years. Her efforts helped spur laws requiring scanner inspections by the state's Bureau of Weights and Measures.

"Somebody has to draw attention the problems in the marketplace with these kinds of issues," she said.

Most notably, she has taken on Wal-Mart, CVS and the now-defunct Hechinger over price scanning errors.

In the case of Wal-Mart, the giant retailer paid her $100 plus court costs in 2002 for charging sales tax on a pair of ballerina-style bedroom slippers. In court, Wal-Mart's attorney argued that sales tax was appropriate because the slippers were classified as dancing shoes, she says. "It makes for a funny story."

Besides her latest suit, she has hauled Kmart to court three other times for charging her a higher price on an item than promised in an advertisement or display. In all three cases, both sides showed up at the magistrate's office but reached a settlement before arguments were heard, Mrs. Bach says.

So far this time, she hasn't "heard a peep" from Kmart, which has been owned by Sears Holdings since 2004.

"I have no clue what is going to happen. I have no experience with Sears in terms of a lawsuit," she said.

Mrs. Bach says she hopes her case sheds light on tax laws and spurs other people to speak up when they find an error.

"Mistakes are made, but retailers have to understand that if they do business in Pennsylvania, they must get it right."

For lists of taxable and non-taxable items in Pennsylvania visit www.revenue.state.pa.us and search for "sales tax."


Patricia Sabatini can be reached at psabatini@post-gazette.com or 412-263-3066.


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