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JAY G. OCHROCH AND JOAN OCHROCH v. MOJTABA KIA-NOURY AND GLORIA KIA-NOURY (08/30/85)

filed: August 30, 1985.

JAY G. OCHROCH AND JOAN OCHROCH, HIS WIFE, APPELLANTS,
v.
MOJTABA KIA-NOURY AND GLORIA KIA-NOURY, HIS WIFE



Appeal from the Decree of the Court of Common Pleas of Montgomery County, Civil at No. 80-21087.

COUNSEL

Gilbert Newman, Philadelphia, for appellants.

Leigh P. Narducci, Norristown, for appellees.

Montemuro, Popovich and Watkins, JJ.

Author: Popovich

[ 345 Pa. Super. Page 162]

This is an appeal by appellants, Jay G. Ochroch and Joan Ochroch, from a final decree of the Court of Common Pleas

[ 345 Pa. Super. Page 163]

    of Montgomery County. The following factual background as found by the chancellor below is unchallenged by appellants:

Appellants and appellees, Mojtaba Kia-Noury and Gloria Kia-Noury, are adjoining landowners in Abington Township. In January, 1975, appellees constructed an in-ground swimming pool. In connection with the construction thereof, appellees erected a chain-link fence between the two properties and built up the grade and slope of the ground with fill and debris. The chancellor found that the fence and landfill encroached upon appellants' property. The fill, which is visible from appellants' pool and tennis area, was composed of, among other things, iron pins, lumber, stumps, tar paper, cinderblocks, concrete, stones and various items of rubbish and was covered with weeds and shrubs. The chancellor further found that the fill extended onto appellants' property "to the extent of one hundred (100) feet in length, ten (10) feet in width (at its widest point) and five (5) feet in height". The chancellor viewed the property and ordered, inter alia, that appellees remove the chain link fence which also encroached upon appellants' property and further that

[and] . . . re-grade the fill encroachment and the embankment of which it consists, and that she replant pachysandra. Evergreen shrubbery currently growing on the embankment need not be removed.

(Decree Nisi, Lowe, P.J.)

In other words, whereas appellees were required to remove the fence, they were merely ordered to "improve the appearance" of the landfill because

     the relatively de minimis harm to plaintiffs' property caused by that encroachment is outweighed by the potential cost of ...


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