J-A01007-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ZOKAITES CONTRACTING, INC., THE 

GENERAL PARTNER, TRADING AS 

ZOKAITES PROPERTIES, LP.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant

v.

BELL-PUG, INC.

No. 1025 WDA 2016

Appeal from the Order July 7, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD 15-023272

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED MARCH 21, 2017

Zokaites Contracting, Inc., the general partner, trading as Zokaites 

Properties, LP. (“Zokaites”), appeals from the order denying its motion for 

injunctive relief. We affirm. 

This appeal arises in the midst of an ongoing dispute regarding rental 

payments, and money purportedly owed to Zokaites by Bell-Pug, Inc. (“BellPug”). Zokaites initiated this matter by filing a complaint on December 31, 

2015. Bell-Pug responded by filing an answer and new matter and 

counterclaim. After Zokaites replied to Bell-Pug’s pleading, Bell-Pug 

discontinued its counterclaim. Zokaites then filed an amended complaint 

which alleged the following relevant to this matter. Bell-Pug owned and 
J-A01007-17

- 2 -

operated the Penn-Monroe restaurant located at 3985 William Penn 

Highway, Monroeville, Allegheny County. Bell-Pug leased the property from 

Sigma Six Associates, LLC. (“Sigma Six”). Sigma Six executed a note and 

mortgage in favor of Zokaites, and assigned it the lease and rent controlling 

the property upon which Penn-Monroe was situated. Sigma Six 

subsequently defaulted on its obligations under the mortgage. Zokaites took 

control of the property after it initiated a mortgage foreclosure action against 

Sigma Six, and purchased it at a Sheriff’s sale. Bell-Pug remained a tenant 

under the lease agreement throughout this process. 

Bell-Pug did not remit rental payments to Zokaites. On December 2, 

2015, Zokaites served a notice of distraint on Bell-Pug to recover unpaid 

rent and legal fees totaling $34,287.66.1 Bell-Pug allegedly obtained 

personal property subject to the notice of distraint and sold it to third 

parties. Of import to this action, Bell-Pug acquired Penn-Monroe’s liquor 

license, and began the process of transferring it to another entity for a total 

sale price of $45,000. Bell-Pug placed these proceeds in an escrow account 

while it awaited approval for the transfer from the Pennsylvania Liquor 

Control Board. 

____________________________________________

1 Under 68 P.S. § 250.302, after sufficient notice is provided, “personal 

property located upon premises occupied by a tenant shall . . . be subject to 

distress for any rent reserved and due.” 68 P.S. § 250.302.
J-A01007-17

- 3 -

Upon learning that Bell-Pug sought to divest itself of the liquor license, 

Zokaites filed an emergency motion for injunctive relief. In that motion, 

Zokaites argued, inter alia, that, since Bell-Pug ceased operations of the 

Penn-Monroe restaurant and otherwise sold its assets, the only means by 

which Zokaites could recover damages from Bell-Pug was from the proceeds 

of the sale of the liquor license. As such, it requested that the court order 

Bell-Pug to retain the proceeds from the sale of the liquor license in an 

escrow account. Zokaites claimed it had no other adequate remedy at law 

absent future access to these earnings. Thus, it contended that injunctive 

relief was appropriate to protect its interests. 

The court declined to grant Zokaites’ requested relief. Zokaites filed a 

timely notice of appeal.2 It then served a copy of its Rule 1925(b) 

statement of errors complained of on appeal to the trial court, but failed to 

ensure it was properly filed.3 The trial court authored its Rule 1925(a) 

opinion addressing Zokaites’ claimed errors. This matter is now ready for 

our review. 

____________________________________________

2 An appeal as of right may be taken from a court order denying an 

injunction, except in situations not relevant here. See Pa.R.A.P. 311(4). 

3 Zokaites’ Rule 1925(b) statement does not appear in the certified record. 

However, since the court received a copy of that document, addressed the 

issues on the merits, and Bell-Pug did not otherwise object, we will ignore 

Zokaites’ procedural misstep and reach the merits of this appeal. 
J-A01007-17

- 4 -

Zokaites raises one question for our consideration: “Whether the 

lower court erred in denying Zokaites’ Emergency Motion for Injunctive 

Relief on the grounds that Zokaites failed to show that an injunction was 

necessary to prevent irreparable harm that could not be compensated by 

damages, i.e., that Zokaites had an adequate remedy at law.” Appellant’s 

brief at 3. 

We review an order disposing of a motion for preliminary injunction for 

an abuse of discretion. Duquesne Light Co. v. Longue Vue Club, 63 A.3d 

270, 276 (Pa.Super. 2013). Our standard of review in this regard is “highly 

deferential.” WMI Group, Inc. v. Fox, 109 A.3d 740, 747 (Pa.Super. 

2015). This level of deference requires us to review the record “to 

determine if there were any apparently reasonable grounds for the action of 

the court below.” Id. at 347-348. A trial court has apparently reasonable 

grounds for denying injunctive relief if it properly finds that any one of the 

essential prerequisites that a party must establish prior to obtaining 

injunctive relief was not satisfied. Id. at 348. There are six prerequisites 

that a party must prove: 

1) that the injunction is necessary to prevent immediate and 

irreparable harm that cannot be adequately compensated by 

damages; 2) that greater injury would result from refusing an 

injunction that from granting it, and, concomitantly, that 

issuance of an injunction will not substantially harm other 

interested parties in the proceedings; 3) that a preliminary 

injunction will properly restore the parties to their status as it 

existed immediately prior to the alleged wrongful conduct; 4) 

that the activity is seeks to restrain is actionable, that its right to 
J-A01007-17

- 5 -

relief is clear, and that the wrong is manifest, or, in other words, 

must show that it is likely to prevail on the merits; 5) that the 

injunction it seeks is reasonably suited to abate the offending 

activity; and 6) that a preliminary injunction will not adversely 

affect the public interest. The burden is on the party who 

requested injunctive relief. 

Id. (citation and quotation marks omitted). 

The trial court determined that Zokaites failed to establish that 

injunctive relief was necessary to “prevent immediate and irreparable harm 

that cannot be compensated by damages.” Trial Court Opinion, 

9/12/16, at 9 (emphasis in original). It observed that Zokaites commenced 

this action to recover money damages in the form of rents owed. The court 

further opined that money damages were the “most common and 

rudimentary form of damages the civil system offers while available as a 

remedy at law,” and that it could not fathom what differentiated Zokaites’ 

claim from any other similar action. Id. at 9-10. Hence, it determined that 

Zokaites had failed to prove that emergency relief was necessary to avoid a 

harm that could not be compensated by damages, and denied relief. 

Zokaites contends that it met each element required to obtain 

injunctive relief. First, it asserts that it has no adequate remedy at law. In 

this vein, Zokaites maintains that Bell-Pug lacks the assets to pay any 

judgment awarded, other than the proceeds of the sale of the liquor license. 

It concludes that it has no adequate remedy at law since any judgment 

entered against Bell-Pug would be uncollectible, which would constitute 
J-A01007-17

- 6 -

irreparable harm to its interests. Second, Zokaites claims that greater injury 

will occur from denying the injunction since Zokaites would lose its ability to 

collect damages, but Bell-Pug would not otherwise be prejudiced. Third, 

Zokaites alleges that granting an injunction would maintain the status quo 

because the disputed funds would remain in escrow. Fourth, Zokaites avers 

that the wrongful conduct is manifest as Bell-Pug supposedly admitted to its 

failure to pay rent.4 Next, it argues that its right to relief is clearly 

delineated by the terms of the lease assignment and deposition testimony 

provided by one of the owners of Bell-Pug. Lastly, as to the final 

prerequisite, Zokaites fails to make any argument concerning the impact 

that granting relief would have on the public interest. 

Despite arguing only five out of six of the essential elements required 

to obtain a preliminary injunction, Zokaites largely centers its argument on 

its belief that Bell-Pug would be rendered judgment-proof if permitted to 

access the proceeds of the sale of its liquor license. Notwithstanding 

Zokaites’ failure to argue all-six prerequisites, we find the trial court had 

apparently reasonable grounds to deny relief since Zokaites seeks, and may 

____________________________________________

4

In its brief, Zokaites alleges that Bell-Pug had been making rental 

payments to M&T Bank pursuant to a previously executed assignment of 

leases and rents, but stopped doing so in June 2015. Zokaites claims BellPug admitted that it never remitted any payment to Zokaites. Additionally, 

Zokaites maintains that it paid the M&T Bank mortgage in full. Appellant’s 

brief at 8 n.5. 
J-A01007-17

- 7 -

yet acquire, money damages if the trial court decides in its favor. Further, 

Zokaites’ argument conflates Bell-Pug’s ability to pay with its liability to pay. 

The court’s function at trial, if this matter proceeds to that stage, will be to 

determine whether Bell-Pug must pay the rent allegedly owed to Zokaites, 

not whether it can. Simply, as it pertains to the record herein, Zokaites has 

not met its burden of proof. 

We are cognizant that this court has previously affirmed the grant of a 

preliminary injunction to prevent the dissipation of assets in anticipation of 

litigation. See Citizens Bank of Pennsylvania v. Myers, 872 A.2d 827, 

836 (Pa.Super. 2005) (listing cases). However, unlike those cases, the trial 

court here did not find that Bell-Pug dispersed its assets solely to avoid a 

potential adverse judgment. Likewise, our review of the record did not 

disclose evidence of such misconduct. Compare Ambrogi v. Reber, 932 

A.2d 969 (Pa.Super. 2007) (the court affirmed the grant of a preliminary 

injunction after finding, in part, that the defendant had sold off forty-percent 

of their property, and had not turned proceeds over to the court, during the 

fifteen months prior to hearing). Bell-Pug maintains that it has numerous 

creditors, all of whom could benefit from the profit gained by the sale of the 

liquor license. In light of the highly deferential nature of our review, and 

the lack of any evidence tending to show that Bell-Pug is attempting to sell 

the liquor license to render itself judgment proof, we find Zokaites’ likely 

ability to collect a monetary judgment dispositive. 
J-A01007-17

- 8 -

Since Zokaites seeks recovery of owed rental payments, a definite 

pecuniary award, it has not proven that injunctive relief is necessary to 

prevent irreparable harm that cannot be adequately compensated by 

damages. Sovereign Bank v. Harper, 674 A.2d 1085, 1093 (Pa.Super. 

1996) (noting “an injury is regarded as ‘irreparable’ if it will cause damage 

which can be estimated only by conjecture and not by an accurate pecuniary 

standard.”). Hence, Zokaites has an adequate remedy at law, and the trial 

court did not abuse its discretion in denying injunctive relief. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/2017