J-S58021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ZOKAITES PROPERTIES, LP

Appellant

v.

NICKOLAS NICKOLICH AND 

NICKOLICH TOWING & SALVAGE, 

INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 362 WDA 2018

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 judgment1 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 Law4 (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 

____________________________________________

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 101⁄2 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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5 The 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.

6 75 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)).

____________________________________________

8 Appellant’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