IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF 
TRIAL DIVISION-CIVIL

LORA JEAN WILLIAMS, ET. AL., September Term 2016
Plaintiffs,
V. No. 1452
CITY OF PHILADELPHIA, ET. AL., 
Defendants. Commerce Program

Control Number 16100940
ORDER

AND NOW, this? day of December 2016, upon consideration of Defendants?
preliminary objections to Plaintiffs? complaint, Plaintiffs? response in opposition and
Defendants? reply, it is hereby

ORDERED

that the preliminary objections are SUSTAINED and the complaint is dismissed in its entirety.

BY COURT,

 7\
GKAZER, J.

Williams Etal Vs City O-ORDRF i:  

16090145200048

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF 
TRIAL DIVISION-CIVIL

LORA JEAN WILLIAMS, ET. AL., September Term 2016
Plaintiffs,
v. No. 1452
CITY OF PHILADELPHIA, ET. AL., 
Defendants. Commerce Program

Control Number 16100940
OPINION
GLAZER, J. December 19, 2016

This is an action seeking declaratory and injunctive relief to invalidate the Philadelphia
Beverage Tax Plaintiffs, Lora Jean Williams, Gregory J. Smith, CVP Management,
Inc. d/b/a or t/a City View Pizza, ohn?s Roast Pork, Inc. f/k/a John?s Roast Pork, Metro
Beverage of Philadelphia, Inc. d/b/a or t/a Metro Beverage, Day?s Beverage, Inc. d/b/a or t/a
Day?s Beverages, American Beverage Association, Beverage Association,
Philadelphia Beverage Association, and Food Merchants Association (collectively
??Plaintiffs?) are consumers, retailers, distributors and trade associations who allege injury from
the PBT when implemented. Defendants are the City of Philadelphia and Frank Breslin, the
Commissioner of the Philadelphia Department of Revenue (collectively ?Defendants?).

The PBT was passed on June 16, 2016, by the Philadelphia City Council by a vote of 13-
4 and was signed into law on June 20, 2016, by the Honorable James Kenney, Mayor of the City
of Philadelphia. The PBT will become effective January 1, 2017 and will impose a 1.5 cent per
?uid ounce tax by distributors to dealers on the transfer of sugar sweetened beverages 
as defined by the ordinance to Philadelphia dealers. The first collection deadline is February 20,

2017.

The PBT states that 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 PBT de?nes ?sugar?sweetened
beverage? as ?any non-alcoholic beverage that lists as an ingredient: (1) any form of caloric
sugar-based sweetener, including, but not limited to, sucrose, glucose or high fructose corn
syrup; or (2) any form of arti?cial sugar substitute, including stevia, aspartame, sucralose,
neotame, acesulfame potassium (Ace-K), saccharin, and advantame.?1 The PBT de?nes
?Distributor? as ?any person who supplies sugar?sweetened beverage to a dealer.?2 ?Dealer? is
de?ned by the PET 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.?3

The PBT speci?cally excludes the following beverages from the de?nition of ?sugar?
sweetened beverages?: (1) baby formula; (2) ?medical food? as it is de?ned under the Orphan
Drug Act; (3) any product more than ?fty percent of which, by volume, is milk; (4) any
product more than ?fty percent of which, by volume, is fresh fruit, vegetables or a
combination of the two added by someone other than the customer; (5) unsweetened drinks to
which a purchaser can add, or can request that a seller add, sugar at the point of sale, and (6) any
syrup or other concentrate that the customer combines with other ingredients to create a

beverage.4

 

1 Complaint 1] 44.
2 Complaint 45.
3 Complaint 1] 46.

4 Complaint ll 47.

The PBT will be imposed only once in the chain of supply, delivery, and distribution and
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.?S Distributors are generally responsible for the payment of the tax to the
City. In the event the dealer does not acquire an affected beverage from a registered distributor
and the distributor does not pay the tax, then the dealer is responsible for payment of the tax.
The tax requires the distributor to provide ?a receipt detailing the amount of sugar-sweetened
beverage supplied in the transaction and the amount of tax owing on such a transaction? to the
dealer to whom the distributor supplies a ?sugar?sweetened beverage.?

On September 14, 2016, plaintiffs ?led this action seeking to invalidate the PBT by
asserting three preemption claim challenges and four uniformity clause challenges. On the same
day the complaint was ?led, plaintiffs also ?led an Emergency Application for the Exercise of
King?s Bench Powers in the Supreme Court. On November 2. 2016, the
Supreme Court denied the Emergency Application for King?s Bench powers.
Defendants ?led preliminary objections which are now ripe for decision.6

DISCUSSION

I. The PBT is expressly authorized by the Sterling Act, is not duplicative of the
Sales and Use Tax and is not preempted.

In count I of the complaint, plaintiffs claim that the Sterling Act expressly preempts the PBT.

All municipalities, including the City of Philadelphia, are creations of the Commonwealth and

 

5 Complaint 1] 49.

?3 In addition to the Emergency Application for the Exercise of King?s Bench Powers, plaintiffs also ?led a
petition for injunctive relief as well as a miscellaneous motion to supplement the compiaint with a memorandum of
law. The petition for injunctive relief and the miscellaneous motion shall be disposed of in separate orders.

have no inherent powers of their own. Rather, ?they possess only such powers of government as
are expressly granted to them and as are necessary to carry the same into effect.?7 Even where
the Commonwealth has granted powers to act in a particular ?eld, such powers do not exist if the
Commonwealth preempts the ?eld. The preemption doctrine establishes a priority of laws
enacted by various levels of government. Under this doctrine, local legislation cannot permit
what a Commonwealth statute or regulation prohibit and cannot prohibit what Commonwealth
enactments allow. Preemption may be implicit, as when the Commonwealth regulation occupies
the entire ?eld or it may be express where the Commonwealth enactment contains language
speci?cally prohibiting local authority over the subject matter.8 As it pertains to the matter at
issue, the question to be addressed is whether the PET is preempted by the Commonwealth?s
Sales and Use Tax. In order to resolve this question, the Sterling Act must be considered.

The Sterling Act empowers the City of Philadelphia to levy, assess and collect certain
additional taxes for general revenue purposes under certain restrictions.9 The Act provides as
follows:

?the council of any city of the ?rst or second class shall have the authority by ordinance,
for general revenue purposes, to levy, assess and collect, or provide for the levying,
assessment and collection of, such taxes on persons, transactions, occupations, privileges,
subjects, and personal property, within the limits of such city of the ?rst or second class,
as it shall determine, Except that such council shall not have authority to levy, assess and
collect, or provide for the levying, assessment and collection of, any tax on a privilege,

transaction, subject or occupation or on personal property which is now or may hereafter
become subject to a State tax or license fee.? ?0

 

7 Huntley Huntley, Inc. v. Borough Council ofBorough oan/cmont, 600 Pa. 207, 964 A.2d 855 (2009)
quoting City ofPhila. V. Schweiker, 579 Pa. 591, 605, 858 A.2d 75, 84 (2004).

8Huntley Huntley, Inc. v. Borough Council of?Borough of Oakmont, supra.
9 Mastrangelo v. Buckley, 433 Pa. 352, 376, 250 A.2d 447, 459 (1969)

10 United Tavern Owners o/?Philadelphla v. Sch. Dist. ofPhi/adelphia, 441 Pa. 274, 283484, 272 A.2d 868,
872 (1971) citing, Act ofAugust 5, 1932, PL. 45, 5 1,53 P.S. 1597].

The 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. ?1 For example, the court in National Biscuit Co. v.
Philadelphial2 held that the payment of a state corporate income tax does not bar the city from
imposing a mercantile tax which is based on the gross volume of business. Similarly, the court in
Philadelphia v. Sarrzuclsl3 held that there was no con?ict between the state corporate income tax
and a parking lot tax based on gross receipts. Although in both cases the court used the labels
?property involved? and ?excise tax? to distinguish the taxes involved, the distinction does not
rest on labels attached to the tax, but rather on the different aspects of the business which are
being taxed. The Sterling Act only forbids a political subdivision from imposing a tax on the
same aspect of a business that is also taxed by the Commonwealth.

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. 14 Applying this test to the instant matter, this court ?nds as

 

11 Prudential Ins. Co. (if/1m. v. City of'Piltsburgh, 38 Pa. melth. 15, 17, 391 A.2d 1326, 1330 (1978).
12 374 Pa. 604, 98 A.2d 182 (1953).
13 338 Pa. 321, 12 A.2d 79 (1940).

HPocono Downs, Inc. v. Caiasauqua Area School Dist, 669 A.2d 500 (melth. Ct. 1996) citing Com v.
National Biscuit 390 Pa. 642, 652, I36 A.2d 821, 825?826 (1957), appeal dismissed, 357 US. 571, 78 
1383, 2 2d 1547 (1958).

a matter of law that the PET is not duplicative of the Commonwealth?s Sales and Use Tax and is
therefore not preempted. This conclusion is not only supported by the language of the PET but
also by the longstanding legal precedent addressing duplicationthe distribution of $885 on a per ounce basis and legal liability to
pay the tax remains on distributors and, in certain instances, dealers. Conversely, the
Commonwealth?s Sales and Use Tax imposes a tax on soft drinks as de?ned in 72 PS. 
7201(a). The Commonwealth?s tax applies to non-alcoholic drinks including Coca?Cola and
Pepsi, lemonade, fruit juice, root beer, and Dr. Pepper. The Commonwealth?s tax excludes
natural fruit and vegetable juices, milk, coffee, and tea. The Commonwealth?s Sales and Use Tax
is a 6% tax on the ?sale at retail of tangible property or services?. '5 The Commonwealth?s Sales
and Use tax is applied to the purchase price of retail sales of personal property and legal liability
to pay the tax falls on the consumer.

The PBT does not tax the same ?privilege, transaction, subject or occupation or
property? as the Commonwealth?s Sales and Use Tax. The respective taxes apply to
two different transactions, have two different measures and are paid by different taxpayers. The
subject of the PET is a non-retail, distribution level tax on SSBs. The PET is only triggered
when the SSBs are distributed by the distributor to the dealer, irrespective of whether the dealer
sells the product to the consumer. The tax is measured by the volume of fluid ounces of the SSB
and is imposed on the distributor. Alternatively, the Commonwealth?s Sales and Use 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. Since the incidence of the PET and the incidence of the Commonwealth?s

Sales and Use Tax are not the same, the PET is not preempted.

 

15 72 RS. 7202(a).

In an attempt to strike down the PET, plaintiffs argue that the incidence of tax is
determined not by its plain meaning and operation but by any post?tax economic consequences
experienced in the marketplace. Speci?cally, plaintiffs argue that the incidence of the tax is the
same because the PET 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. While at preliminary objections
the court is constrained to accept all well pleaded facts as true as well as all reasonable
inferences drawn from those facts, plaintiffs? allegations regarding the economic incidence of the
PET are not relevant to this court?s determination of whether the PET is duplicative of the
Commonwealth Sales and Use tax. What is determinative is the how the PET operates, not what
private actors will do in response to the tax to offset the burden of the tax or other post-tax
economic transactions. ?6 As recognized by the United States Supreme Court in Gurley v.
Rhoden?, the economic burden of taxes incident to the sale of merchandise is traditionally
passed on to the purchasers of the merchandise. However, the Court found that irrelevant in
deciding the statute?s constitutionality.

In Gurley v. Rhoda/1,18 the Supreme Court upheld the fuel tax, finding that the
congressional purpose was plainly evident where the statute ?place[d] the incidence of tax on the
?producer.??19 While the Supreme Court acknowledged that ?[t]he ultimate economic burden of

the tax rest[ed] upon the purchaser?consumer,? it was immaterial because the ?legal incidence of

 

?3 Com. v. National Biscuit Ca, 390 Pa. 642, 136 A.2d 821, 826 (1957).
I7 421 U.S. 200, 95 1605, 44 L. Ed. 2d l0 (1975at205.

the tax [was] on the producer.?20 Like the fuel tax in Gurley. the ultimate economic burden of the
tax may be imposed upon the purchaser-consumer, but the legal incidence is on the distributor.
Blauner ?s Inc. v. Philade[phid21 stands for the same proposition. In Blauner, the
Supreme Court held that the sales tax and corporate net income tax was not
duplicative because the incidence of taxation was ?wholly different.? The court upheld the
validity of the tax because the sales tax was ?imposed upon the purchaser or consumer,? whereas
the net income tax was imposed ?on the corporation receiving the income.?22
The PBT expressly states that the tax is on the distribution of SSBs as opposed to a tax on
the SSB property itself.23 Mere ownership of the SSBs is not enough to trigger the tax. The
PET is triggered once the SSBs are supplied to a dealer by a distributor for retail sale and is not a
tax on the same property subject to the Commonwealth?s Sales and Use Tax. As such, the PBT

is not preempted and the preliminary objection to count I is sustained and the count is

dismissed.24

 

20 Id. at 207 (quoting Martin 01'] Serv.. Inc. v. Dep ?t OfRevemte, 273 823, 826 (Ill. 1971)); see also
United States v. New Mexico, 455 US. 722, 722 (1982)) (finding that the tax did not violate the United States?
immunity from state taxation just because ?the tax has an effect on the United States, or because the Federal
Government shoulders the entire economic burden ofthe levy, or because the tax falls on the earnings ofa
contractor providing services to the Government?).

3? 330 Pa. 342, 198 A. 889 (Pa. l938)

33 Id.

23 See Phila. Code 

3? Because the court ?nds that the PET was expressly authorized by the Sterling Act and therefore not

expressly preempted, con?ict preemption does not exist. Accordingly, the preliminary objection to count 11 is also
sustained and the count is dismissed.

II. The PET is not preempted by SNAP since the tax is not collected on Retail
Sales.

In count 111 of the complaint, plaintiffs claim that the PBT impermissibly con?icts with
the Commonwealth?s implementation of SNAP because it causes SNAP bene?ts to be used to
pay a sales tax. The Supplemental Nutrition Assistance Program is a federally funded
program Whose bene?ts help supplement an individuals or a family?s income to help buy
nutritious food. By mandate of the Food Stamp Act of 1977, a state may not receive federal
SNAP funds unless it agrees not to impose a sales and use tax on eligible grocery items,
including low-calorie and regular soft drinks. 25 Congress amended the Food Stamp Act in 1985
to ensure that states did not circumvent its prohibition on collecting state or local sales taxes on
SNAP purchases in order to ?put an end to what is, in effect, a transfer of revenues from the
federal government to state and local governments at the expense of low income
person. . .Federal dollars provided for food assistance should not be diverted to other purposes.?26
This prohibition however does not apply to the PET because SNAP recipients, the ultimate
consumers, will not pay the PET, given that the incidence of tax is at the distribution level.

The scope of SNAP is limited to the ?purchase [of] foodfrom retail food stores.?27 The
PET is not a sales tax on the consumer, but rather a tax on the distributor.28 As discussed above,
the incidence of taxation is assessed by examining the statute?s intended taxpayer, and not the

economic impact of the tax.29 Under the plain terms of the PET, the tax is not collected upon

 

25 Complaint 11 12.

26 Complaint 1] 13 citing HR. Rep. 99-271 (1)(1985).

37 7 U.S.C.A. 2013 

3" Phila. Code (2) (2016) (enacted); See Phila. Code 19-41030) (2016) (enacted).

29 See, Gurley v. Rhoden, supra at 421 US. 200, 205 (1975).

?purchases? at ?retail? made with food stamps, but only upon non?retail, distributor-level
transactions. Since the incidence of taxation is not on the consumer and the tax is not paid
using SNAP bene?ts, the PBT is not preempted. Accordingly, the preliminary objection to count
111 is sustained and the count is dismissed.30

The PBT does not violate the Uniformity Clause of the 
Constitution.

Counts IV through VII of plaintiffs? complaint allege that the PBT violates the
Uniformity Clause of the Constitution. Plaintiffs allege that the PBT is not
uniform because it falls on four different classes, soft drinks, distributors, retailers and
consumers, on an unequal basis. Speci?cally, plaintiffs allege 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 SSB. However, the
only classes created by the PBT are distributors and arguably SSBs which are one and the same
for purposes of this analysis. The consumer and retailer classes identi?ed by plaintiffs are not
classes created by the PBT and are therefore not subject to tax liability under the PBT.

It is clear from the complaint that plaintiffs? uniformity challenge to the PBT is
speci?cally directed to the tax burden to be borne by the respective distributors who supply SSBs
to retailers within the City of Philadelphia. According to plaintiffs, the PBT does not operate
uniformly since a distributor that sells small quantities of high-cost beverages will owe far less
tax than one who distributes large quantities of budget beverages, even if the revenues or pro?ts

of the former are higher.

 

30 Based on this ruling, the question of subject matterjurisdiction need not be considered.

10

The Uniformity Clause of the Constitution states ?[a]ll taxes shall be
uniform, upon the same class of subjects, within the territorial limits of the authority levying the
tax, and shall be levied and collected under general laws.? 3 This clause requires that every tax
?operate alike on the classes of things or property subject to it.?3?2 ?While reasonable and
practical classi?cations in tax legislation are justi?able and often permissible, when a method or
formula for computing a tax will, in its operation or effect, produce arbitrary, unjust, or
unreasonably discriminatory results, the uniformity requirement is violated.?33

The Uniformity Clause requires that all taxpayers in a given class be treated uniformly,
without regard to the amount involved.34 Here, the distributors are taxed based on volume in
similar fashion to fuels and alcoholic beverages. 35 The Uniformity Clause does not require
absolute equality and perfect uniformity in taxation, and any doubts as to the constitutionality of
the statute are to be resolved in favor of upholding the statuterl6 In evaluating a tax for

uniformity purposes, the court?s sole purpose is to determine the ordinance?s constitutionality. It

is the responsibility of the legislature to question whether the tax is equitable and just. 37 tax

 

31PA. Const. art. 1. ?All taxes? includes property taxes and specific taxes.
33 Commonwealth v. Overholt Co., 331 Pa. 182, 200 A. 849, 853 (1938).

33 Clifton v. Allegheny Cnly., 600 Pa. 662, 969 A.2d 1 197, 1211 (2009).

34 Saulsbury v. Bethlehem Steel Company, 413 Pa. 316, 196 A.2d 664 (1964).

35 75 PS. 9004 (fuel taxed by gallon), 74 Pa. CS. 6121 (aviation fuel taxed by gallon) and 72 PS. 
9003 (alcohol taxed by ounces).

35 Parsowith v. Com. Dept. ofRevenue, 555 Pa. 200, 723 A.2d 659, 663?64 (1999).

37 Com. v. Girard Life Ins, Co., 305 Pa. 558, 158 A. 262 (1932).

ll

enactment will not be invalidated unless it clearly, palpably, and plainly violates the
Constitution.?38

Plaintiffs? rely upon Commonwealth v. Overholt,? to support their position that the PET
violated the Uniformity Clause. ln Overholt, the court held that a $2 per gallon tax on all alcohol
stored within violated the uniformity clause because it did not take into
consideration the value of the liquor involved resulting in the owner of cheaper liquor bearing a
greater burden than the owners of expensive liquors.40 The tax was not invalidated based on
unequal tax burdens and pro?t margins when the tax was applied. Rather, after the plaintiff
conceded that the tax at issue was a property tax, the tax was invalidated as non?uniform based
on how the property to be taxed was valued.? Here, valuation of property is not in issue because
the PET is not a property tax but a speci?c tax on the privilege of distributing SSBs in the City
of Philadelphia. Consequently, the PET, a tax on distribution, unlike the property tax in
()verholt, need not be assessed on an ad valorem basis.42

The manner and measure of calculating the tax is uniformly applied to distributors.

The PBT levies a tax on per fluid ounce of SSBs distributed in the City to dealers at a rate of 1.5

 

38 Wilson Partners, L. P. v. Commonwealth Bd. ofFinance and Revenue, 558 Pa. 462, 737 A.2d 1215, 1220
(1999) (citations and internal quotation marks omitted).

39 331 Pa. 182, 200 A. 849 (Pa. 1938)
401d. 331 Pa. at 851.

4? Plaintiffs also rely upon Amz'don v. Kane, 444 Pa. 38, 279 A.2d 53 (Pa. 1971) which involves a
uniformity challenge to an income tax. Amidon, however, is distinguishable since an income tax is a property tax.

42 Taxes are either speci?c or ad valorem. Speci?c taxes are a ?xed amount by the head or number, or by
some standard of weight or measurement and require no assessment other than a listing or classi?cation ofthe
subjects to be taxed. An ad valorem tax is a tax ofa ?xed proportion ofthe value ofthe property with respect to
which the tax is assessed, and requires the intervention of assessors or appraisers to estimate the value of such
property before the amount due from each taxpayer can be determined. Commonwealth v. Overholt Ca, 331 Pa.
182, 200 A. 849, 852 (1938). The PET is a speci?c tax based on the ?supply, acquisition, delivery or transport? of
8885 for the purpose ofthe dealer?s holding out for retail sale within the City of sugar?sweetened beverage.

12

cents per ounce. As such, all distributors are subject to the same tax calculation formula and
therefore no disparate treatment exists within the distributor class in regard to the formula and
rate of tax. The PET is measured by volume of SSBs distributed which is related to the
government?s interest in having its residents abstain from the range of drinks covered by the
PBT.

The case subjudice is more akin to Wanamaker 12. Philadelphia School District et all3 In
Wanamaker, the Supreme Court addressed the issue of whether a Business Use and Occupancy
Tax, calculated based on the assessed value of real estate, the amount of square footage used or
occupied and the duration of the occupancy violated the uniformity clause. The taxpayers in
Wanamaker complained that they would bear very different tax burdens as a percentage of their
total real estate value depending on the amount of space used or occupied and the time Spent
occupying that space. Despite the taxpayers? argument of unequal tax burdens, the court found
the tax to be uniform since the Business Use and Occupancy Tax was a privilege tax on the use
of real estate and not a property tax. In doing so, the Court explained that while economically the
incidence of the tax is on the property itself, its legal incidence is on the privilege of using the
real estate, making it a true excise tax.44 The PBT, like the tax in Wanamaker, is not a property
tax since the legal incidence of the tax is based on the privilege of distributing SSBs in

Philadelphia. Consequently, since the PET is not a property tax it need not be assessed aa?

 

43 441 Pa. 567,274 A.2d 524 (1971).

44 la?. See also, Paul L. Smith, Inc. v. Southern York Cty. Sch. Dist, 44 Pa. melth. 227, 233, 403 A.2d
1034, 1037 (1979) (tax did not violate the uniformity clause since it was a tax on an owner's privilege of using his
realty as a location for his residence); In re Lawrence Twp, Sch. Dist, 1947 Taxes, 362 Pa. 377, 383, 67 A.2d 372,
374 (l949)(the tax imposed by the Resolution under consideration is a property tax on coal and violates
constitutional requirement of uniformity in that, being a property tax, it is imposed on a quantity and not an ad
valorem basis).

13

valorm. The PBT does not violate the Uniformity Clause of the Constitution and
defendants? preliminary objection to counts is sustained and the counts are dismissed.
CONCLUSION
For the forgoing reasons, defendantsa preliminary objections are sustained and the

complaint is dismissed in its entirety.

 

 


GLAZEK, J.

14