Gregory, G. v. Robb, R.

• Court: Superior Court of Pennsylvania
• Decided: December 29, 2016
• Docket: 366 EDA 2016
• Status: Unpublished

Opinion

J-A28045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY GREGORY, EXECUTOR AND IN THE SUPERIOR COURT OF PERSONAL REPRESENTATIVE OF THE PENNSYLVANIA ESTATE OF ELLEN GREGORY, DEC.,

Appellee

v.

RAFAEL ROBB,

Appellant No. 366 EDA 2016

Appeal from the Order Entered January 5, 2016 in the Court of Common Pleas of Montgomery County Civil Division at No.: 2008-36401

BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.: FILED DECEMBER 29, 2016

Appellant, Rafael Robb, appeals from the trial court’s order denying his

motion to release assets from a constructive trust. We quash this appeal as

interlocutory and remand to the trial court.

We take an abbreviated factual and procedural history in this matter

from our review of the certified record. On July 17, 2009, Appellee, Gary

Gregory, executor and personal representative of the estate of Ellen

Gregory, filed suit against Appellant after he pleaded guilty to murdering his

wife, Ellen Gregory. On May 6, 2013, the trial court issued an order

imposing a constructive trust over all of Appellant’s assets and properties.

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* Retired Senior Judge assigned to the Superior Court. J-A28045-16

(See Order, 5/06/13). No appeal was taken from that order. On November

7, 2014, a jury found in favor of Appellee and awarded damages of over

$120 million.

On May 1, 2015, Appellant filed a motion to release the constructive

trust with regard to assets that he claims are exempt from the judgment.

On January 5, 2016, the court issued an order denying the motion to release

the constructive trust. (See Trial Court Opinion and Order, 1/05/16, at 14-

15). The court further ordered that the assets be subject to distribution and

Appellee be permitted to conduct further financial discovery of Appellant’s

assets, and stated that it would conduct a hearing to determine their

distribution. (See id.) This timely appeal followed.

Preliminarily, we must consider the propriety of this appeal. “An

appeal lies only from a final order unless otherwise permitted by rule or

statute.” Shearer v. Hafer, 135 A.3d 637, 641 (Pa. Super. 2016), appeal

granted, 2016 WL 4768945 (Pa. 2016) (citation omitted); see Pa.R.A.P.

341(b)(1) (“A final order is any order that: disposes of all claims and of all

parties . . . .”). Pennsylvania Rule of Appellate Procedure 311 concerns

interlocutory appeals as of right and provides: “An appeal may be taken as

of right . . . from . . . [a]n order confirming, modifying, dissolving, or

refusing to confirm, modify or dissolve an attachment, custodianship,

receivership, or similar matter affecting the possession or control of property

. . . .” Pa.R.A.P. 311(a)(2). “[T]he right to appeal interlocutory orders has

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been narrowly circumscribed.” Jerry Davis, Inc. v. Nufab Corp., 677 A.2d

1256, 1258 (Pa. Super. 1996).

The trial court’s January 5, 2016 order is not a final order. See

Pa.R.A.P. 341(b)(1). Furthermore, we find no merit to Appellant’s claim that

it is immediately appealable because it subjected otherwise exempt assets to

attachment or execution. (See Appellant’s Reply Brief, at 4). The trial court

did not distribute the assets in question, but rather scheduled a hearing to

determine how they will be distributed. (See Trial Ct. Op. and Order, at 15).

Thus, the court’s January 5, 2016 order does not meet the stringent

requirements of an interlocutory order appealable as of right. See Jerry

Davis, Inc., supra at 1258; Pa.R.A.P. 311(a)(2). Consequently, we lack

jurisdiction at this time to review Appellant’s appeal on the merits.

Accordingly, we quash this appeal.

Appeal quashed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/29/2016

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