Zokaites Properties v. Nickolich, N. ( 2018 )

J-S58021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ZOKAITES PROPERTIES, LP : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NICKOLAS NICKOLICH AND : No. 362 WDA 2018
NICKOLICH TOWING & SALVAGE, :
INC. :
Appeal from the Judgment Entered March 20, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): Case No. GD-16-018926
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 22, 2018
Zokaites Properties, LP (Appellant) appeals from the judgment 1 entered
in favor of Nickolas Nickolich and Nickolich Towing & Salvage, Inc. (Nickolich),2
____________________________________________
1 Appellant appealed from the February 27, 2017 denial of the post-trial
motion, before judgment was entered. Pursuant to this Court’s rule to show
cause, Appellant filed a praecipe with the trial court to enter judgment, which
occurred on March 20, 2018. See Brown v. Philadelphia College of
Osteopathic Medicine, 760 A.2d 863 (Pa. Super. 2000) (appeal does not
properly lie from order denying post-trial motion, but rather upon judgment
entered following disposition of post-trial motion). This Court then discharged
our rule to show cause, and amended the caption to reflect that the appeal is
properly taken from the judgment.
2 For ease of discussion, we use “Nickolich” to refer to both Mr. Nickolich and
his towing corporation together, and, when discussing Mr. Nickolich’s trial
testimony, to him individually.
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following a bench trial. Appellant avers that the trial court erred in denying
relief under the Towing and Towing Storage Facility Standards Act3 (Tow Act)
and Unfair Trade Practices and Consumer Protection Law 4 (UTPCPL), and in
finding that Nickolich’s charges for its towing services were reasonable. We
affirm.
Appellant is a limited partnership and “the developer of a 140 home
residential real estate development” in Jefferson Hills Borough, Allegheny
County. Its owners are Frank Zokaites and his wife. Appellant’s Amended
Complaint, 10/5/16, at 1-2; N.T. Trial, 12/4/17, at 7, 62-63. Nickolich “is the
appointed towing contractor for Jefferson Hills Borough.” Trial Court Opinion,
4/25/18, at 2.
The trial court summarized the factual background as follows:
This action arises out of a single vehicle accident occurring
on September 28, 2016, in which [Appellant’s] 2001 Mack Tri-axle
dump truck rolled out of control and into the backyard of a private
residen[ce] in Jefferson Hills Borough, Allegheny County,
Pennsylvania. At the time of this incident, [Appellant] was
engaged in performing site related construction activities ancillary
to the construction of residential homes at Jefferson Estates, a
residential community within Jefferson Hill Borough.
On the above-referenced date, the operator [John Zokaites,
Frank Zokaites’ brother,] failed to set the parking brake before
exiting the truck. The Tri-axle slid approximately two-hundred
(200) feet, falling on its side and coming to rest in a weeded area
where the terrain flattened just short of a child’s playset. At the
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3 73 P.S. §§ 1971.1 – 1971.5.
4 73 P.S. §§ 201-1 to 201-9.3.
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time of this occurrence the playset and surrounding area was
unoccupied. There were no injuries reported as a result of this
accident.
[Nickolich] is the appointed towing contractor for Jeffereson
Hills Borough. [Appellant] first attempted to upright and remove
the vehicle with its own equipment and with its own employees.
Following some initial and apparent problems in accomplishing
same, the ‘up righting’ and removal of the vehicle was
accomplished by Nickolich[.]
Trial Court Opinion, 4/25/18, at 1-2.
With reference to the record, the trial court made the following findings:
At trial, Nick Nickolich credibly testified that he was the
second generation of Nickolich Towing, and that both he and his
father had been personally serving the residents of Jefferson Hills
Borough since the 1980s. (Tr. at 12). That on the date of this
incident, [he] was requested by the Jefferson Hills Police to
effectuate the recovery after concerns arose during [Appellant’s]
own recovery efforts. Specifically, onlookers believed, “[T]hey
had too light of chains.” (Tr. at 12-13).
At said time, the tri-axle was laying on its side with a
ruptured fuel tank in a residential community on a slight
downgrade. Nickolich testified that upon meeting with neighbors
and police, “they were scared it could have slid down more. And
the way they were recovering the vehicle, it could have ended up
either going into the property owner’s house, or it could have
bypassed that and gone down the street into another house.” (Tr.
at 13).
Id. at 11-12.
Nickolich’s recovery and tow of Appellant’s truck took 10½ hours to
complete. N.T. Trial, 12/4/17, at 33. Nickolich testified that the police placed
a “hold” on the truck in order to inspect its brakes, and accordingly, Nickolich
towed the truck to his lot. Id. at 52-53. Frank Zokaites was not at the site
when the accident occurred, but arrived the next morning, after the truck had
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been towed. Id. at 70. The next day, Nickolich remitted a bill to Appellant
for $19,436. Appellant offered to pay $450, and Nickolich refused to return
the truck.
On October 4, 2016, Appellant commenced the underlying action,
raising a single claim of replevin for the truck. Pertinent to this appeal, the
complaint also referenced the Tow Act and the UTPCPL as follows:
As a further direct and proximate result of [Nickolich’s] violation
of the Towing Act, Section 1971.4 of the Towing Act says that a
violation of the Towing Act is also a violation of the [UTPCPL].
Under the UTPCPL, [Appellant] is entitled to treble damages and
its attorney’s fees and costs.
Appellant’s Amended Complaint, 10/5/16, at 11. Nickolich filed preliminary
objections, which the trial court overruled.
On February 17, 2017, Nickolich filed an answer, new matter, and
counterclaim, seeking judgment in the amount of $19,435 for its services.
The case proceeded to a bench trial on December 4, 2017. Appellant informed
the court that it was in possession of the truck. N.T. Trial, 12/4/17, at 3. The
trial court responded, “the replevin action is moot because you got what
you’ve asked for. . . . So this is strictly over the counterclaim. . . .
[Appellant’s c]omplaint is moot.” Id. at 4. Appellant agreed, and raised no
claim for damages under the UTPCPL. See id.
With respect to the reasonableness of Nickolich’s bill, Frank Zokaites
and his brother John both testified that Appellant had the proper equipment
and a plan to upright the truck, and after securing the truck with chains, it
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was 5 to 10 “minutes away from physically uprighting the truck.” Id. at 72-
77, 98, 110. Although Frank Zokaites conceded that fuel was leaking from
the overturned truck, he also maintained that the truck was not “in any way[
] a danger” and there was no risk it would slide away. Id. at 83, 89, 94. Both
Zokaites brothers testified that Nickolich had agreed to tow the truck the next
day with John Zokaites’ assistance. Id. at 80, 111. However, they both
conceded that ultimately the police directed Nickolich to tow the truck. Id. at
80, 89, 119, 129.
Nickolich testified that the $19,436 bill was reasonable. N.T. Trial,
12/4/17, at 43. Nick Nickolich explained that the sum included a $7,330
charge for a bill from Dom Folino Construction, whom Nickolich engaged to
assist; “hourly rates for the wreckers[,] supervisors and laborers”; charges
for the use of Nickolich’s equipment; $1,050 for a bill from the local fire
company, which, pursuant to Nickolich’s protocol with the police, was called
to be “on standby” due to the leaking fuel and the risk that someone could get
pinned or trapped; and $800 for an ambulance which was also on standby.
Id. at 15-21, 30-31. Nickolich further testified that the line item charges
included a 30% markup, which, according to Nickolich, was the tow industry
standard profit margin. Id. at 22, 35, 44.
Conversely, Frank Zokaites testified that “in this industry,” the standard
profit-margin markup for renting equipment was 20%, representing 10% “for
overhead and 10[%] for profit.” Id. at 66. Frank Zokaites reasoned that if
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there was no overhead, such as in this case where Nickolich simply called the
other service providers, the markup should be only 10%. Id. Nickolich
countered that “the rental industry is not the same as the tow industry.” Id.
at 43.
We note that at trial, Appellant referred to the Tow Act when arguing
that “in addition [to] another legal argument, . . . there was a violation of the
[T]ow [A]ct and . . . therefore, as a matter of law, [Nickolich is] not entitled
to collect.” N.T. Trial, 12/4/17, at 81. During closing, Appellant claimed that
Nickolich’s violations of the Tow Act “go to the issue of whether the tow was
properly authorized.” Id. at 128-129. Appellant did not mention the UTPCPL
during trial.
On December 6, 2017, the trial court issued a verdict and award in favor
of Nickolich in the amount of $17,491.50. Appellant filed a timely post-trial
motion.5 Appellant averred: (1) because Nickolich violated various provisions
of the Tow Act, Appellant was entitled to treble damages and attorneys’ fees
under the UTPCPL; (2) Nickolich’s towing of Appellant’s truck violated Section
3352 of the Vehicle Code6 (“Removal of vehicle by or at direction of police”),
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5The ten-day deadline for filing a post-trial motion was Sunday, December
12, 2017. See Pa.R.C.P. 227.1(c)(1). Appellant thus had until the following
day, Monday, December 18th, to file a post-trial motion, and the filing on that
day was timely. See 1 Pa.C.S.A. § 1908.
675 Pa.C.S.A. §§ 101-9805. Appellant also refers to the Vehicle Code as the
“Rules of the Road.”
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and thus Nickolich’s bill was improper; and (3) Nickolich’s bill was unfair
because it included unreasonable excess charges. The court heard argument
on the motion on February 22, 2018. Thereafter, the court denied the motion
and Appellant filed a notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925(b).
As noted above, this Court determined that judgment had not been
entered on the docket and directed Appellant to file a praecipe with the trial
court to enter judgment. Judgment in favor of Nickolich in the amount of
$17,491.50 was entered on March 20, 2018. The trial court filed an opinion
on April 25, 2018, in which it found: (1) Appellant was not entitled to UTPCPL
relief because Section 201-9.2(a) of the UTPCPL provides only that “[a]ny
person who purchases or leases goods or services primarily for personal,
family or household purposes” may bring a private action, and here,
Appellant and its truck were engaged in a commercial purpose7; and (2) an
award of $17,491.50 to Nickolich was reasonable based upon Nickolich’s
____________________________________________
7 Section 201-9.2(a) of the UTPCPL states in full:
Any person who purchases or leases goods or services primarily
for personal, family or household purposes and thereby
suffers any ascertainable loss of money or property, real or
personal, as a result of the use or employment by any person of
a method, act or practice declared unlawful by section 31 of this
act, may bring a private action to recover actual damages or one
hundred dollars ($100), whichever is greater.
73 P.S. § 201-9.2(a) (emphasis added).
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credible testimony that Appellant’s overturned truck had a ruptured fuel tank
and was in danger of sliding down a slight downgrade, and the services from
Dom Folino Construction and the fire and ambulance company were
necessary. Trial Court Opinion, 4/25/18, citing 73 P.S. § 201-9.2.
Appellant raises four issues for our review:
1. Whether the Court committed errors of law and fact in failing
to find that [Nickolich] violated Pennsylvania’s [Tow Act] and
whether the lower court should have awarded damages under the
[UTPCPL].
2. Whether the Court committed errors of law and fact in failing
to find that [Nickolich] violated Pennsylvania’s Rules of the Road
Act under the Motor Vehicle Code, 75 Pa. C.S.A. § 3352, such that
the tow of [Appellant’s] Mack Truck was unauthorized.
3. Whether the Court committed errors of law and fact in finding
that [Nickolich’s] tow bill was fair and reasonable.
4. Whether the Court committed errors of law and fact in making
an award to [Nickolich] on [its] tow bill in spite of being instructed
by [Appellant] to not upright nor tow [Appellant’s] Mack Truck.
Appellant’s Brief at 6.
Appellant first alleges that the trial court failed to address whether
Nickolich violated the Tow Act. Appellant maintains that it presented
uncontroverted evidence that Nickolich violated the Tow Act, 73 P.S. § 1971.3
(listing conduct that a tow truck operator “shall” undertake), by failing to,
inter alia, store Appellant’s truck in a secure location, release the truck when
requested by Appellant, and display Nickolich’s name and address on its tow
truck. Appellant’s Brief at 15-17. Appellant contends that these violations
not only precluded Nickolich from charging Appellant any fees, but also
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entitled Appellant to damages under the UTPCPL. In support, Appellant argues
that Section 1971.4 of the Tow Act plainly states: “A violation of this act is
also a violation of the [UTPCPL].” Id. at 18, citing 73 P.S. § 1971.4. Appellant
reasons, “Nowhere in the Tow Act does it say that one needs to also prove a
violation of the UTPCPL in order to get to the damage aspect of that statute.
. . . Thus, [Appellant] did not have to show that the transaction was a
consumer transaction, a commercial transaction or otherwise. All that was
required was a showing that [Nickolich] violated the Tow Act.” Appellant’s
Brief at 19. Addressing the trial court’s reliance on Section 201-9.2 of the
UTPCPL, Appellant specifies that it “is not seeking a private action under the
UTPCPL,” but rather “the private action granted [to it] exists under the Tow
Act, Section 1971.4.” Id. After careful review, we conclude this issue is
waived for failure to raise it at trial.
“An appellate court does not sit to review questions that were neither
raised, tried, nor considered in the trial court. . . . It is a fundamental principle
of appellate review that we will not reverse a judgment or decree on a theory
that was not presented to the trial court.” Dollar Bank v. Swartz, 657 A.2d
1242, 1245 (Pa. 1995) (quotation marks and some punctuation removed).
See also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”). Pennsylvania Rule of Civil
Procedure 227.1(b) provides:
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Except as otherwise provided by Pa.R.E. 103(a),[8] post-trial relief
may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or
by motion, objection, point for charge, request for findings
of fact or conclusions of law, offer of proof or other
appropriate method at trial; and
* * *
(2) are specified in the motion. The motion shall state how
the grounds were asserted in pre-trial proceedings or at
trial. Grounds not specified are deemed waived unless leave
is granted upon cause shown to specify additional grounds.
Pa.R.C.P. 227.1(b)(1)-(2).
As stated above, Appellant’s complaint raised only one count — an
action in replevin to recover its truck — and did not aver any separate cause
of action under the Tow Act. Although the complaint included a two-sentence
request for UTPCPL damages, Appellant did not object at trial when the court
ruled that its complaint was moot and clarified that the only issue before the
court was Nickolich’s counterclaim. See N.T. Trial, 12/4/17, at 4. Appellant’s
brief does not point to any place in the trial transcript where it raised this
issue. See Pa.R.A.P. 2117(c) (statement of the case shall specify place in the
proceedings at which question sought to be reviewed was raised), 2119(e)
(argument must set forth specific cross-reference to the page of the statement
of the case which set forth the information required by Pa.R.A.P. 2117(c)).
____________________________________________
8Appellant’s issue is not evidentiary in nature, and thus Pa.R.E. 103(a) does
not apply.
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Our review of the trial transcript reveals no mention of the UTPCPL by
the court or either party; rather, Appellant’s sole argument with respect to the
Tow Act was that Nickolich was neither “entitled to collect” nor authorized to
tow its truck — not that Appellant was entitled to any damages. See id. at
81, 128. In light of this failure to raise the issue at trial, Appellant’s inclusion
of a claim for UTPCPL damages in its post-trial motion did not preserve the
issue for appeal. See Pa.R.C.P. 227.1(b)(1)-(2). Because Appellant did not
properly present this issue before the trial court, it is waived. See Dollar
Bank, 657 A.2d at 1245.
Appellant’s second claim is that Nickolich and the Jefferson Hills Borough
Police violated Section 3352 (“Removal of vehicle by or at direction of police”)
of the Vehicle Code because, inter alia, Appellant’s truck came to rest on
private property, not a highway; did not present any danger; did not impede
traffic; and was not abandoned. Appellant reasons that as a result, Nickolich
was not authorized to tow the truck and the judgment in favor of Nickolich
must be reversed.
Our review of the trial transcript reveals that the sole reference to the
Vehicle Code was made in Appellant’s closing argument:
[Appellant’s Counsel:] Also there’s the Rules of the Road that
I’d ask for the Court to consider, being subchapter E, section
3352. And then the [T]ow [A]ct which is founded —
THE COURT: It strikes me that the violations of the [T]ow [A]ct
that you are citing, failure of the address even though his name
and phone number is on the side and the posting, they go to
whether or not his license can be — he can be fined. They don’t
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go to liability in this case for the bill.
[Appellant’s Counsel:] Well, actually I think — I think that,
actually, both of them go to the issue as to whether the tow
was properly authorized and properly done or not.
THE COURT: It seems, based upon John Zokaites’ testimony
and on the testimony of [Nickolich], that the police intervened,
took control of the situation, and they ordered everything.
[Frank Zokaites]: That’s correct.
N.T. Trial, 12/4/17, at 128-129 (emphasis added). Because Appellant
advanced some argument that Nickolich’s towing of its truck was improper
because of a Vehicle Code Section 3352 violation, we will consider the merits
of Appellant’s claim.
We note the relevant standard of review:
Our appellate role in cases arising from nonjury trial
verdicts is to determine whether the findings of the trial
court are supported by competent evidence and whether the
trial court committed error in any application of the law. The
findings of fact of the trial judge must be given the same
weight and effect on appeal as the verdict of the jury. We
consider the evidence in a light most favorable to the verdict
winner. We will reverse the trial court only if its findings of
fact are not supported by competent evidence in the record
or if its findings are premised on an error of law. However,
[where] the issue . . . concerns a question of law, our scope
of review is plenary.
The trial court, as the finder of fact, is free to believe “all, part
or none of the evidence presented.” “Issues of credibility and
conflicts in evidence are for the trial court to resolve; this Court is
not permitted to reexamine the weight and credibility
determination or substitute our judgment for that of the fact
finder.”
Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d
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1188, 1191-1192 (Pa. Super. 2018) (citations omitted).
Section 3352 of the Vehicle Code states in pertinent part:
(b) Unattended vehicle obstructing traffic.—Any police officer
may remove or cause to be removed to a place of safety any
unattended vehicle illegally left standing upon any
highway, bridge, causeway or in any tunnel, in such position
or under such circumstances as to interfere unduly with the
normal movement of traffic or constitute a safety hazard.
(c) Removal to garage or place of safety.—Any police officer
may remove or cause to be removed to the place of business of
the operator of a wrecker or to a nearby garage or other place of
safety any vehicle found upon a highway under any of the
following circumstances . . . .
75 Pa.C.S.A. § 3352(b)-(c) (emphasis added).
Instantly, the trial court reasoned:
This writer finds that a commercial tri-axle truck, overturned
on its side with a ruptured fuel tank, leaking fuel on private
property, not owned by the truck owner is worthy of government
intervention in regards [to] the safe removal. [Frank Zokaites]
testified that the police on scene requested [Nickolich] to remove
his vehicle. (Tr. at 80). [Nickolich’s] tow service has enjoyed a
service contract with Jefferson Hills Borough for generations. (Tr.
at 12). This writer finds the characterization of the tow as
“unauthorized” as contrary to the evidence and testimony elicited
at trial. (See entire Transcript).
Trial Court Opinion, 4/25/18, at 10.
While Appellant is correct in pointing out that Section 3352 concerns the
removal of vehicles from a highway and that here, its truck came to rest on
private property, we conclude that the argument is meritless. There is no
language in Section 3352 precluding the type of action undertaken by the
police in this case. Further, we agree with Nickolich that the removal of the
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truck was proper under Section 3353 of the Vehicle Code, see Nickolich’s Brief
at 17-18, which addresses the removal of vehicles from private property:
(b) Unattended vehicle on private property.—
(1) No person shall park or leave unattended a vehicle on
private property without the consent of the owner . . . except
in the case of emergency or disablement of the vehicle, in
which case the operator shall arrange for the removal of the
vehicle as soon as possible.
* * *
(c) Property owner may remove vehicle.—The owner or other
person in charge or possession of any property on which a vehicle
is parked or left unattended in violation of the provisions of
subsection (b) may remove or have removed the vehicle at the
reasonable expense of the owner of the vehicle. Such person who
removes or has removed a vehicle left parked or unattended in
violation of the provisions of subsection (b) shall have a lien
against the owner of the vehicle, in the amount of the reasonable
value of the costs of removing the vehicle plus the costs of
storage. . . . .
75 Pa.C.S.A. § 3353(b)(1), (c).
Here, Appellant’s truck was overturned and leaking fuel on the private
property of a homeowner. Appellant initially attempted to upright the truck,
but the homeowner told the police and Nickolich of his concern that Appellant’s
equipment was inadequate and the truck posed a danger. N.T. Trial, 12/4/17,
at 12-13. As acknowledged by Frank Zokaites at trial, the police thus directed
Nickolich, an experienced towing company, to secure and tow the truck. We
disagree with Appellant’s assertion that Nickolich and the police violated
Section 3352 and the Vehicle Code. Instead, we conclude that Section 3352
is not applicable to the facts of this case, and there was no violation of the
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Vehicle Code.
We next address Appellant’s third and fourth issues together. First,
Appellant contends that Nickolich’s charges were unfair and unreasonable. In
support, Appellant argues that the charge for Nickolich’s “assessment of
recovery” was inflated; the charge for the three tow trucks that Nickolich
brought to the site was unfair because Nickolich ultimately only used one tow
truck; and Nickolich’s overall profit markup of 30% was not reasonable where
“Zokaites, an experience[d] real estate developer, contractor and builder who
owns millions of dollars of equipment, testified that a fair and reasonable
markup was only 10%.” Appellant’s Brief at 24-25. Appellant additionally
maintains that Nickolich’s recovery and tow of the truck were unauthorized.
Appellant alleges that Frank Zokaites specifically directed Nickolich not to tow
the truck, and that “the uncontroverted evidence shows there was no need to
recover and tow the Mack Truck because it was in a safe position.” Id. at 27.
Appellant also avers that Nickolich agreed to have Appellant assist in
recovering the truck with Appellant’s equipment.
The trial court awarded Nickolich $17,491.50 — $1,943.50 less than the
amount requested by Nickolich — and stated that it found that the amount
“was reasonable.” See Trial Court Opinion, 4/25/18, at 13. Instantly,
Appellant presents questions of fact as to whether the amounts charged for
the line items in Nickolich’s bill were reasonable, and whether — regardless of
the police directing Nickolich to tow the truck — Appellant agreed to Nickolich
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towing the truck. These arguments would require this Court to reevaluate the
evidence adduced at trial and supplant the trial court’s credibility
determinations with our own; this is not our role as an appellate court and
would be improper. See Gamesa Energy USA, LLC, 181 A.3d at 1191-1192.
At trial, Appellant thoroughly cross-examined Nickolich as to Nickolich’s
charges for the engagement of Dom Folino Construction, “Assessment of
Recovery by Supervisors,” the use of Nickolich’s own equipment, and the fire
and ambulance companies’ bills. Nickolich explained the reasons for each of
the charges. N.T. Trial, 12/4/17, at 27-39. As discussed above, both Nickolich
and Frank Zokaites testified to their understanding of the industry standard
for profit margin markups. Id. at 22, 66-67. The reasonableness of
Nickolich’s bill was for the trial court, as the factfinder, to decide, and we may
not disturb its findings. See Gamesa Energy USA, LLC, 181 A.3d at 1191-
1192.
In sum, Appellant’s claims do not merit relief. We therefore affirm the
judgment entered in favor of Nickolich.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2018
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