Ambrogi v. Reber

• Decision Date: 07 September 2007
• Docket Number: No. 1700 EDA 2006.,No. 1840 EDA 2006.,1700 EDA 2006.,1840 EDA 2006.
• Parties: Laura A. AMBROGI, Co-Administrator of the Estate of Tara DeSimone, Appellee v. Robert M. REBER, Rosemary Reber, Reber Real Estate, Inc. and Reber Property Management, Appellants. Laura A. Ambrogi, Co-administrator of the Estate of Tara DeSimone, Appellee v. Robert M. Reber, Rosemary Reber, Reber Real Estate, Inc. and Reber Property Management, Appellants.
• Court: Pennsylvania Superior Court

932 A.2d 969

Laura A. AMBROGI, Co-Administrator of the Estate of Tara DeSimone, Appellee v. Robert M. REBER, Rosemary Reber, Reber Real Estate, Inc. and Reber Property Management, Appellants.

Laura A. Ambrogi, Co-administrator of the Estate of Tara DeSimone, Appellee v. Robert M. Reber, Rosemary Reber, Reber Real Estate, Inc. and Reber Property Management, Appellants.

No. 1700 EDA 2006.

No. 1840 EDA 2006.

Superior Court of Pennsylvania.

Argued April 10, 2007.

Filed September 7, 2007.

Charles K. Graber, King of Prussia, for appellants.

Carmen P. Belefonte, for appellee.

BEFORE: HUDOCK, LALLYGREEN and COLVILLE,^* JJ.

OPINION BY HUDOCK, J.:

¶ 1 This is a consolidated interlocutory appeal as of right, pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(4), from the grant of a preliminary injunction entered to prevent dissipation of assets. We affirm.

¶ 2 In December of 2003, Tara DeSimone, Joseph DeSimone and Frank Cifelli resided in an apartment located at 338 Beverly Boulevard, Upper Darby, Delaware County, Pennsylvania. The property was owned by Robert and Rosemary Reber, either individually or through Reber Real Estate, Inc., and/or Reber Property Management. A fire occurred at 338 Beverly Boulevard on December 8, 2003. Twenty-three-year-old Tara DeSimone and her four-year-old son, Joseph, perished in the fire. Frank Cifelli suffered serious injuries. Three law suits were commenced by writ of summons on behalf of the victims of the fire (hereafter collectively Appellees) naming as defendants Robert M. Reber, Rosemary Reber, Reber Real Estate, Inc. and Reber Property Management (hereafter collectively Appellants). These suits were consolidated by trial court order at Delaware County No. 05-2118.

¶ 3 The complaint filed in the consolidated action asserts that Appellants engaged in both intentional and negligent conduct in violation of provisions of both the BOCA Code¹ and the local safety codes established by Upper Darby Township, and that these violations allegedly caused the fire that killed Ms. DeSimone and her son and injured Mr. Cifelli. Among other things, Appellees' complaint alleges that, at the Beverly Boulevard property, Appellants violated the applicable safety codes by failing to provide required smoke detectors, permitting a dangerously non-compliant electrical wiring system to remain in place, failing to warn Appellees that the electrical system was unsafe and failing to take any steps to remedy the code violations that caused both the fire and Appellees' inability to escape uninjured from the conflagration. See Complaint, 6/10/05, at 4-22. Appellees' complaint seeks both compensatory and punitive damages.

¶ 4 It is undisputed that Appellants possess only $1,000,000.00 in liability insurance, but that they own a substantial amount of real property situated in the Commonwealth of Pennsylvania. Trial Court Opinion, 11/9/06, at 2. After the commencement of the consolidated action, Appellees were provided with notice that Appellants intended to sell the property at which the fire occurred. Appellees investigated matters further and learned that Appellants were in the process of liquidating their assets and, as of May of 2006, already had sold fifteen properties. Id. Appellees feared that Appellants were engaging in a course of conduct designed to render themselves "execution proof" from any judgments that might result from the consolidated suit. Therefore, Appellees filed a joint emergency motion seeking both a preliminary and a permanent injunction to preclude Appellants from dissipating their assets.

¶ 5 After conducting a hearing in the matter, the trial court entered an order granting Appellees' request for a preliminary injunction. Under the terms of the trial court's order, Appellants were precluded from "engaging in the partial or wholesale dissolution of their assets" in anticipation of the pending litigation. Appellants were not precluded from selling properties, buying new properties or from managing their existing assets. However, the trial court determined that it was necessary for it to exercise supervision over the disposition of any assets realized upon the sale of a property.

AND NOW, this 9th day of May, 2006, after a hearing and following thorough and careful consideration of the [Appellees'] Joint Emergency Motion for the Entry of a Preliminary/Permanent Injunction pertaining to the sale and/or transfer of real property within the actual or equitable ownership of [Appellants], and [Appellants'] Response thereto, as well as the Memoranda of Law submitted in support thereof, it is hereby ORDERED and DECREED that [Appellees'] Motion for a Preliminary Injunction will be, and hereby is, GRANTED in order to prevent [Appellants] from engaging in the partial or wholesale dissolution of their assets in anticipation of, and for the purpose of, avoiding their responsibilities to discharge any civil liability that may be determined against them in the above-captioned cause of action. In keeping with this ORDER, it is further DECREED that:

1. Within ten (10) days of the date hereof, [Appellants] shall submit to the Court a complete list of all real property holdings in which they possess, in whole or in part, an actual or equitable ownership interest.

2. [Appellants] shall, within five (5) business days from the receipt of the gross proceeds derived from any and all sales, transfers, and/or assignments of any and all real property holdings in which they possess, in whole or in part, an actual or equitable ownership interest, deposit the receipts in their entirety in an interest bearing Court supervised escrow account, or face sanctions upon [Appellees'] further petition to the Court.

3. At all times thereafter, pending the conclusion of trial and entry of judgment and/or other final disposition of this litigation that may be determined by express agreement of the parties, [Appellants] hereby, and thereby are, required to, and shall, petition this Court for permission to make any withdrawals therefrom.

4. [Appellees] shall, within ten (10) days of the date of this Order, post bond in the amount of $500,000.00 (Five Hundred Thousand Dollars) with the Court of Common Pleas of Delaware County, Pennsylvania pursuant to Pennsylvania Rule of Civil Procedure 1531(b).

Preliminary Injunction, 5/9/06 (docketed 5/10/06). Appellees filed a petition to modify the preliminary injunction to obtain an extension of the deadline for posting the necessary bond to accommodate the underwriting requirements of the bonding company, which the trial court granted.

¶ 6 Appellants filed both a timely notice of appeal from the order entered on May 10th, and a timely motion for reconsideration seeking to vacate the preliminary injunction. On June 7, 2006, the trial court granted reconsideration and, on June 13, 2006, the trial court conducted a second hearing. Subsequently, the trial court entered the following order:

AND NOW, this 19th day of June, 2006, after a hearing and following thorough and careful consideration of [Appellants'] Motion for Reconsideration of the Court's Order of May 9, 2006, and [Appellees'] Petition to Modify Bond Amount as set forth in the said Order, and the Responses thereto, as well as the Memoranda of Law submitted in support thereof, it is hereby ORDERED AND DECREED that paragraphs 2 and 4 of the said Order will be, and hereby are, REVISED and MODIFIED IN THE FOLLOWING PARTICULARS:

"(2) [Appellants] shall, within five (5) business days from the receipt of the net proceeds (i.e. gross proceeds of any sales less all reasonable, necessary and customary costs associated therewith, and payment of any encumbrances related to the property) derived from any and all sales, transfers, and/or assignments of any and all real property holdings in which they possess, in whole or in part, an actual or equitable ownership interest, deposit the receipts in their entirety in an interest bearing Court supervised escrow account, or face sanctions upon [Appellees'] further petition to the Court."

* * * *

"(4) [Appellees] shall, within ten (10) days of the date of this Order, post bond in the amount of $100,000.00 (One Hundred Thousand Dollars) with the Court of Common Pleas of Delaware County, Pennsylvania pursuant to Pennsylvania Rule of Civil Procedure 1531(b)."

IT IS FURTHER ORDERED and DECREED THAT IN ALL OTHER RESPECTS THE Court's Order dated May 9, 2006, shall remain in full force and effect.

Order, 6/19/06 (docketed 6/20/06).

¶ 7 The required bond was posted on June 21, 2006. On June 26, 2006, Appellants filed a timely notice of appeal from the order of June 19th. The trial court ordered Appellants to file a Rule 1925(b) statement within fourteen days. Appellants timely complied. This appeal presents one issue:

1. Did the lower court err in granting a mandatory injunction, requiring [Appellants] to deposit into a court-supervised escrow account any net proceeds received from the sale of real estate they own, where [Appellees] failed to prove their entitlement to the extraordinary remedy of injunctive relief and the injunction issued is not reasonably suited to address the result about which the lower court expressed concern: to wit, inadequate assets with which to satisfy any future, excess judgment entered against [Appellants]?

Appellants' Brief at 6.²

¶ 8 Appellate courts review the grant of a preliminary injunction for an abuse of discretion. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 828 A.2d 995, 1000 (2003). An abuse of discretion is not merely an error of judgment. Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 658 A.2d 341, 343 (1995). Rather, an abuse of discretion exists if the trial court renders a judgment that is manifestly unreasonable, arbitrary, or capricious, or if it fails to apply the law or was motivated by partiality, prejudice, bias, or ill will. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116, 1123 (2000). If...