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GRANT HUNSICKER v. J. GORDON KATZ AND SHIRLEY G. KATZ (02/11/83)

filed: February 11, 1983.

GRANT HUNSICKER, GEORGE W. RHOADS AND JOAN E. RHOADS, HIS WIFE, RICHARD A. KOCH AND FAYE A. KOCH, HIS WIFE, AND ELWOOD J. BLOCKER AND MARY JANE BLOCKER, HIS WIFE, APPELLANTS,
v.
J. GORDON KATZ AND SHIRLEY G. KATZ, HIS WIFE



No. 3039 PHILADELPHIA, 1981, Appeal from an Order of the Court of Common Pleas, Civil Division, of Carbon County, No.5 April Term, 1978.

COUNSEL

Paul A. McGinley, Allentown, for appellants.

Cheryl Ann Klepper, Palmerton, for appellees.

Hester, Cirillo and Johnson, JJ.

Author: Hester

[ 310 Pa. Super. Page 215]

This appeal arises from the issuing of a Decree Nisi entered on May 18, 1981, and a final Order, entered on November 4, 1981, by the Honorable Albert H. Heimbach, Court of Common Pleas of Carbon County, denying appellants request for a mandatory injunction which would compel the appellees to remove that portion of their garage which encroaches upon the right-of-way of Ochre Street, in the Borough of Lehighton, Carbon County.

A procedural and factual history of the case is as follows:

Appellants and appellees are owners of lots in what is presently known as Northern Acres Development in Lehighton Borough. The plan has been recorded. The development was originally laid out by Charles Weirbach for the Beckendorf Estate in 1903. Lots were sold according to the Beckendorf plan. On April 8, 1970, appellees purchased their lot in the plan and constructed a home with an attached garage fronting on North 6th Street and adjoining Ochre Street to the north and King Alley*fn1 to the west. The garage encroached onto Ochre Street, a distance of 8.15 feet. Ochre Street as laid out is 49.5 feet wide.

When appellees purchased their lot and constructed their home in 1970, that part of Ochre Street between 5th and 7th Streets and North 6th Street immediately north of Ochre may best be described as woodland, brush and wild shrubbery with no reasonable street boundary markings. At the time of the rendering of the Decree Nisi and accompanying

[ 310 Pa. Super. Page 216]

Opinion by the lower court on May 18, 1981, Ochre Street west of North 6th Street was termed "impassible."

Appellants, as stated, are lot owners in this development. Mr. Hunsicker purchased his lot in 1968. The Kochs and Rhoads families purchased their property in 1967 and the Blockers purchased their lot in 1978. All of the appellants except the Blockers reside on Ochre Street between 4th and 5th Street. The Blockers reside on North 7th Street.

Appellants' reasons for seeking a mandatory injunction as stated to the lower court are twofold: 1) appellants have an interest in an orderly street system as planned by the Beckendorf Estate; and 2) the value of appellants' property will be decreased ...


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