J-A24036-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    JOHN P. COBB AND NANCY M. COBB          :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
         v.                                 :
                                            :
    KEEN LAKE CAMPING & COTTAGE             :
    RESORT, INC., KLCCR, LLC AND RICE       :
    COAL COMPANY, THEIR HEIRS,              :
    ADMINISTRATORS, SUCCESSORS, AND         :
    ASSIGNS, AND ANY AND ALL OTHER          :
    PERSONS CLAIMING ANY RIGHT, TITLE       :
    OR INTEREST IN OR TO THE HEREIN-        :
    DESCRIBED REAL PROPERTY OTHER           :
    THAN PLAINTIFFS, WHOSE IDENTITY         :
    OR IDENTITIES ARE UNKNOWN               :
                                            :
    APPEAL OF: JOHN P. COBB                 :   No. 110 EDA 2015

              Appeal from the Judgment Entered December 30, 2014
                 in the Court of Common Pleas of Wayne County,
                       Civil Division at No(s): 266-Civil-2012

BEFORE:       PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED OCTOBER 30, 2015

        John P. Cobb1 appeals from the December 30, 2014 judgment2 entered

in favor of defendant KLCCR, LLC, following a non-jury trial in this boundary

dispute case. We affirm.

        Keen’s Lake, also known as Keen’s Pond, is a body of water located in

Canaan Township, Wayne County, Pennsylvania.         The lake was originally


1
  With respect to the land at issue, John and Nancy Cobb were tenants by
the entireties. Nancy Cobb passed away during the course of the litigation.
2
  The December 30, 2014 judgment was entered, following the denial of
Cobb’s post-trial motion, upon the trial court’s August 6, 2014 order
directing the entry of judgment.


* Retired Senior Judge assigned to the Superior Court.
J-A24036-15


enclosed within a 114-acre parcel of land conveyed to Jacob Keen in 1847.

That parcel subsequently was split among other property owners, including

Keen, Cobb, Yander, and Keenan. At present the lake, and much of the land

surrounding it, is used by campers. We offer the following diagram to aid in

understanding the descriptions of the land disputes discussed hereafter.3




     The Keen land at issue is a pentagon-shaped parcel of approximately

five acres, which was carved from the parent parcel in 1851 and transferred

to the D&H Canal Company. James L. Keen and Dorothy Keen took title to

3
  The diagram includes a portion of KLCCR’s Trial Exhibit 7, modified to add
elements of Cobb’s Trial Exhibits 7 and 8. This is offered merely to aid the
discussion, may not be to scale, and is not intended to be an authoritative
representation of the parties’ ownership rights.


                                    -2-
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that parcel in 1970. In 2001, the four daughters of James and Dorothy Keen

obtained the property, and formed KLCCR for the purpose of running the

campground.

      The Cobb parcel at issue (referred to by the parties and trial court as

“Parcel Two”) was transferred in 1949 from Charles E. Keen to James and

Theresa Cobb.4 The property description included in the deed for Parcel Two

is the following: beginning at the point where the creek crosses the old road,

thence northeast for approximately 224 feet to another point in the center of

the road; “thence south ten degrees one minute west to the low[-]water

mark in Keen’s pond; thence in a general southwesterly direction following

the said low water mark in Keen’s pond three hundred ninety-nine feet to a

stake and stones;” then north ten degrees one minute east back to the

beginning point.   Cobb’s Trial Exhibit 12 (repetition of numbers omitted).

Cobb obtained the land from Theresa, his mother, in 1974. The description

of Parcel Two provided in the deed creates an overlap onto KLCCR’s five-acre

parcel.

      Yander owns land south of the KLCCR parcel which is along the eastern

shore of Keen’s Lake. Keenan’s land is south of the Yander parcel, and also

borders the lake. In the 1970s, a dispute arose between Keen and Cobb on

4
  Cobb also asserted title to another parcel located above the road, referred
to by the parties as “Parcel One.” By court order reflecting the agreement of
the parties, judgment was entered prior to trial in favor of Cobb and against
all defendants as to this parcel. See Order, 9/4/2013.


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the one hand, and Yander and Keenan on the other, regarding use of the

lake.

        In 1972, Keen and Cobb together sued Yander and Keenan in equity,

claiming that the defendants and their guests were trespassing upon lands

covered by Keen Lake that were owned by Keen and Cobb.          The litigation

resulted in a final order declaring that Keen Lake’s western zero-foot contour

line was the line of demarcation between the lands of Yander and Keenan to

the east, and the lands of Keen and Cobb to the west. Specifically, the order

provided that title to Keen’s Lake west of the western zero-foot contour line

thereafter belonged to the Keens “except for so much thereof as is included

in” the Cobbs’ 1949 deed. Cobb’s Trial Exhibit 22.

        From the time he obtained the land from his mother, Cobb used the

overlap parcel. He gave permission to a utility company to install a pole on

the overlap parcel in 1976. At some point in the 1990s, Cobb put up a fence

in the overlap to keep campers from straying onto his land; he did not seek

permission and received no objections. When James Keen drained the lake

in 1991 to repair the dam, Cobb performed some work on the lake bed.

N.T., 9/3/2013, at 144. In 1996, he gave James Keen permission to pave a

portion of the overlap parcel; Cobb testified that he plowed the road in the

winter, mowed the grass in the summer, and used the road when he fished

in the lake.




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      However, Keen/KLCCR employee Anita Lee testified that she oversaw

and participated in the upkeep of the overlap area by maintaining the road,

putting up fences, trimming trees, and rebuilding campsites; never in her 27

years there did she see Cobb perform any such maintenance. Similarly, the

president of KLCCR testified that the Keens, not Cobb, used and maintained

the overlap parcel as part of their campsite business.

      After obtaining title to the land in 2009, KLCCR hired Joseph Barrett to

survey its property, resulting in the discovery of the overlap with Cobb’s

parcel. Thereafter, Cobb retained Alfred Bucconear to conduct a survey of

Cobb’s property lines.    Cobb then filed a complaint for quiet title and

ejectment against KLCCR, Keen Lake Camping, and Rice Coal Company.5

KLCCR answered and filed ejectment and quiet title counterclaims against

Cobb. Cobb eventually obtained a default judgment against all defendants

other than KLCCR.

      The case proceeded to a non-jury trial on claims regarding Parcel Two.

On August 6, 2014, the trial court entered an order (1) finding in favor of

“Defendants” and against Cobb, and (2) determining that Cobb’s Parcel Two

is limited to the area outside the boundaries of KLCCR’s land as determined

by Barrett’s 2009 survey (i.e., the overlap parcel belongs to KLCCR). Cobb

timely filed a post-trial motion seeking JNOV or a new trial. After conducting

5
 Rice Coal Company was one of the predecessors in title to the Keens and
KLCCR. Cobb’s Brief at 11.


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a hearing, the trial court denied Cobb’s motion by order of December 3,

2014. Judgment was entered on December 30, 2014, and Cobb timely filed

a notice of appeal.

      Cobb presents this Court with the following questions which we have

reordered for ease of disposition:

             1.   Did the trial court err as a matter of law in failing to
      find that Cobb has title to all of Parcel Two when the 1949 deed
      in Cobb’s chain of title establishes that Cobb owns to the low
      water mark, the September 11, 1975 Order establishes the zero
      contour line as both the low[-]water mark and the line of
      demarcation, and the trial court recognized that the September
      11, 1975 Order confirmed title to Cobb’s property in accordance
      with the 1949 deed?

             2.    Did the trial court err as a matter of law in failing to
      find that Cobb has title to Parcel Two by virtue of the doctrine of
      consentable lines when Cobb and Keen consented to a boundary
      line that gave Cobb all of Parcel Two and the trial court found
      that Cobb has claimed the entirety of Parcel Two since 1974
      through his actions in fencing and posting this parcel, granting
      permission to have a PPL pole and overhead lines installed on
      this parcel, and granting permission to pave the access road on
      this parcel?

            3.     Did the trial court err as a matter of law in
      precluding Cobb from testifying under the Dead Man’s Act to
      statements made by, and agreements made with, deceased prior
      owner James Keen when James Keen had no actual interest in
      the claims in dispute, neither Keen Lake Camping nor KLCCR is
      the legal representative and/or heir of James Keen, and Keen
      Lake Camping and KLCCR waived the protections of the Dead
      Man’s Act by engaging in discovery?

            4.     Did the trial court err as a matter of law in denying
      Cobb’s motion for a new trial based upon after-discovered
      evidence in the form of an Amended Complaint and map in the
      1972 litigation when Mr. Bucconear discovered the evidence in



                                      -6-
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      the Courthouse basement after the trial concluded, and this
      evidence clearly shows the low[-]water mark being the line of
      demarcation linking the zero contour?

            5.   Did the trial court err as a matter of law in directing
      the entry of judgment in favor of defendants, including Keen
      Lake Camping and Rice Coal Company, and in determining that
      Cobb’s Parcel Two is limited to the area set forth in the 2009
      survey by Joseph Barrett, when the trial court previously
      directed the entry of judgment against all defendants except
      KLCCR and the 2009 Barrett survey does not define what
      property Cobb owns?

Cobb’s Brief at 4-5 (trial court answers omitted).

      We begin with our standard of review.

             Our appellate role in cases arising from non-jury trial
      verdicts is to determine whether the findings of the trial court
      are supported by competent evidence and whether the trial court
      committed error in any application of the law. The findings of
      fact of the trial judge must be given the same weight and effect
      on appeal as the verdict of a jury. We consider the evidence in a
      light most favorable to the verdict winner. We will reverse the
      trial court only if its findings of fact are not supported by
      competent evidence in the record or if its findings are premised
      on an error of law. However, [where] the issue ... concerns a
      question of law, our scope of review is plenary.

Wyatt Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa.

Super. 2009) (quoting Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa.

Super. 2005)).

      Cobb first challenges the trial court’s ruling as to the portion of Parcel

Two which lies under the waters of Keen’s Lake. As noted above, the 1949

deed indicates that Parcel Two extends from the point where the creek

crosses the old road, thence northeast for approximately 224 feet to another



                                     -7-
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point in the center of the road; “thence south ten degrees one minute west

to the low[-]water mark in Keen’s pond; thence in a general southwesterly

direction following the said low water mark in Keen’s pond three hundred

ninety-nine feet to a stake and stones;” then north ten degrees one minute

east back to the beginning point.      Cobb’s Trial Exhibit 12 (repetition of

numbers omitted).

      Cobb insists that the low-water mark is the same thing as the zero-

foot contour line which the trial judge in 1975 determined was the line of

demarcation between the property of Keen and Yander. He argues that the

low-water mark cannot be the shoreline, because he could not have been a

plaintiff in the action against Yander and Keenan if he had not owned land

which was under the waters of Keen’s Lake, as that case dealt solely with

trespass on the waters of the lake.    Cobb’s Brief at 32-33.    Citing Black’s

Law Dictionary, Cobb maintains that “[c]ommon sense dictates that the

low[-]water mark of a body of water is… the lowest point to which water

sinks.” Cobb’s Brief at 31.

      The trial court disagreed, and so do we. Consideration of the following

definition of watermark in Black’s Law Dictionary reveals that it refers not to

the highest and lowest topographical points of a body of water; rather it

reflects the differing shorelines that result from the changing volume of the

body of water.




                                     -8-
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     1. A mark indicating the highest or lowest point to which water
     rises or falls.

        high-water mark. 1. The shoreline of a sea reached by
        the water at high tide.  The high-water mark is usu.
        computed as a mean or average high tide and not as the
        extreme height of the water. 2. In a freshwater lake
        created by a dam in an unnavigable stream, the highest
        point on the shore to which the dam can raise the water in
        ordinary circumstances. 3. In a river not subject to tides,
        the line that the river impresses on the soil by covering it
        long enough to deprive it of agricultural value. ― Also
        termed high-water line.

        low-water mark. 1. The shoreline of a sea marking the
        edge of the water at the lowest point of the ordinary ebb
        tide. 2. In a river, the point to which the water recedes at
        its lowest stage.

Black’s Law Dictionary at 1623 (8th ed. 2004).

     It is clear that the low-water mark of Keen’s Lake is the line which

becomes the shoreline when the volume of water in the lake sinks to its low

point. It is not, as Cobb proposes, the point where the lakebed dips down

closest to the center of the earth. As KLCCR’s expert explained, the reason

deeds for properties along a body of water were made to the low-water

mark was to guarantee access to the water: “back in the day when you

needed cattle to be able to get to the water to drink, they would make it to

the low[-]water mark so they weren’t standing four f[ee]t back” when the

water was at its low point. N.T., 9/3/2013, at 243.

     The language of the deed further demonstrates the correctness of the

trial court’s determination. According to the 1949 deed, the southwestern




                                    -9-
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point of Cobb’s property is a spot on the low-water line marked by a stake

and stones. As KLCCR’s surveyor Barrett explained, “you’re never going to

find a stake and stones in the middle of the lake in 1949 when this deed was

written.” Id. at 267.

      Unless the volume of water in Keen’s Pond is at its lowest, Cobb owns

land that is under water.    At all other times, his boundary line is not the

shoreline, and he in fact owns land that is under the water. Thus, there is

no merit to his argument that he could not have been a plaintiff to the 1972

action unless the low-water mark is the zero-foot contour line.

      Moreover, the 1975 order which concluded the 1972 case does not

purport to define the boundaries of Cobb’s land. Rather, it provides that the

portion of Keen’s Lake that lies west of the western zero-foot contour line

belongs to Keen, except as provided in Cobb’s deed. Cobb’s deed indicates

that his property extends to the low-water mark, not to the zero-foot

contour line. Accordingly, the trial court’s ruling in the instant case does not

conflict with the 1975 order.

      The trial court’s determinations that the low-water mark and the zero-

foot contour line are not the same, and that Cobb’s land below the waters of

Keen’s Lake extends only to the low-water mark, are a result of the correct

application of the law to factual findings that are supported by the record.

Hence, Cobb’s first issue warrants no relief.




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      With his next two issues, Cobb claims that the trial court erred in

determining that KLCCR owns the overlap parcel.          He argues that the

evidence that was admitted showed that he has title to that land under the

doctrine of consentable lines.6 Cobb’s Brief at 37-40. Further, he maintains

that the trial court improperly excluded under the Dead Man’s Act additional

evidence relevant to his consentable-line claim. Id. at 40-48.

      This Court has summarized the law regarding the doctrine of

consentable lines as follows:

            The establishment of a boundary line by acquiescence for
      the statutory period of twenty-one years has long been
      recognized in Pennsylvania to quiet title and discourage
      vexatious litigation. Based upon a rule of repose sometimes
      known as the doctrine of consentable line, the existence of such
      a boundary may be proved either by dispute and compromise
      between the parties or recognition and acquiescence by one
      party of the right and title of the other. …

            “Acquiescence,” in the context of a dispute over real
      property, denotes passive conduct on the part of the lawful
      owner consisting of failure on his part to assert his paramount
      rights or interests against the hostile claims of the adverse user.
      A determination of consentable line by acquiescence requires a
      finding 1) that each party has claimed the land on his side of the
      line as his own and 2) that he or she has occupied the land on
      his side of the line for a continuous period of 21 years. …
      [W]hen a consentable line is established, the land behind such a
      line becomes the property of each neighbor regardless of what
      the deed specifies. In essence, each neighbor gains marketable



6
  Cobb’s expert conceded that KLCCR has superior title to the overlap parcel
by virtue of the 1851 deed which originally carved out its pentagon-shaped
parcel, N.T., 9/3/2013, at 105, and that the overlap parcel thus was not
given to Cobb by the 1975 order, id. at 112-13.


                                    - 11 -
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      title to that land behind the line, some of which may not have
      been theirs under their deeds.

Moore v. Moore, 921 A.2d 1, 4-5 (Pa. Super. 2007) (quotations and

citations omitted).

      Cobb claims that he established ownership of the overlap parcel both

by dispute and compromise and by acquiescence.       Cobb argues that the

following evidence proved (1) circumstantially that he and Keen had agreed

to Cobb’s ownership of the overlap parcel and acted accordingly for more

than 21 years, and (2) Keen’s acquiescence in Cobb’s ownership of the

overlap parcel for more than 21 years:

      Cobb’s (and not Keen’s) giving PPL permission, in June of 1976,
      to put a pole with overhead utilities on Overlap Parcel Two in
      order to provide service to Keen; Cobb’s putting up
      approximately three sections of round rail fence on Overlap
      Parcel Two without any permission or objections from Keen;
      Cobb’s posting “No Trespassing” signs on Parcel Two beginning
      in 1974 or 1975; Cobb’s giving Keen permission to pave the
      access route located on Overlap Parcel Two; Keen Lake
      Camping’s naming Cobb as an additional insured on its insurance
      policy with respect to Overlap Parcel Two; Cobb’s giving Keen
      permission to maintain the driveway, cut the grass and pick up
      garbage on Overlap Parcel Two; Cobb’s going out into the waters
      of Keen Lake when the lake was drawn down in 1994, removing
      sediment from the bottom of the lake and fixing the shoreline
      and bank, without objections from anyone; and Cobb’s accessing
      Keen Lake by boat from Parcel Two and fishing in Keen Lake on
      a weekly basis during the summer and winter months.

Cobb’s Brief at 38 (citations omitted).

      Cobb has failed to convince us that this evidence requires a finding

that the Keens agreed or acquiesced to his ownership of the overlap parcel.



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First, several of these highlighted pieces of evidence do not even support his

position. Specifically, Cobb’s being listed as an additional insured on KLCCR

indicates not that Cobb was the owner of the overlap parcel, but rather that

KLCCR owned the land and Cobb was a permissive user.          Further, as we

have discussed, Cobb’s deed gives him to the low-water mark of the lake,

and includes the land normally under the water near the shoreline.7

Therefore, Cobb did not leave the bounds of land that is acknowledged to

belong to him when, while Keen’s Lake was drained, he went into the

lakebed to fix the shoreline and bank in front of his home.

      More importantly, however, Cobb ignores the evidence that the Keens

and KLCCR also treated the overlap parcel as their property during the same

time period. Anita Lee, who worked on the maintenance crew at the Keens’

campground from 1987 until the time of trial, testified that it was the Keens

who maintained and improved the disputed overlap parcel during her tenure

by mowing and clearing debris therefrom, cutting trees, rebuilding campsites

and fencing, keeping up the electric and water lines, and maintaining the

paved area. N.T., 4/30/2014, at 9. Ms. Lee never saw Cobb perform any

maintenance in the area, and he never informed her that he owned that land

or objected to the Keens’ activities thereupon. Id. at 8.




7
 According to the map admitted as Cobb’s trial exhibit P-6, the low-water
mark is roughly along the 9-foot contour line.


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      Jennifer Wertz, daughter of James and Dorothy Keen and president of

KLCCR, testified that she worked on the campground as a child, and has

been employed there full-time since graduating from college in 1978. Id. at

15.   Ms. Wertz indicated that, since the Keens obtained the property in

1970, they initially filled in land within the overlap area so it could be used

for campsites and added electricity.      Id. a 20.    Thereafter, the Keens

continued to enlarge the area within the overlap parcel used for campsites,

paved roadways, and added additional electric and water lines as well as

picnic tables. Id. The cost of installing the utility pole in the overlap area

about which Cobb makes much ado was paid for by James Keen. Id. at 21.

The Keens allowed Cobb to use the lake for fishing because they were

neighbors. Id. at 22. At no time between 1974 and 2009 did Cobb ever

claim ownership in any portion of the overlap area which the Keens used for

campsites. Id.

      From this evidence, the trial court was well within its discretion to

conclude that the Keens neither recognized a line along the overlap parcel as

the boundary between their and Cobb’s properties nor acquiesced to any

such line. Evidence that each party treated the property at issue as his own

simply does not establish a boundary by consentable line. Cf. Plauchak v.

Boling, 653 A.2d 671, 676 (Pa. Super. 1995) (holding that boundary by

consentable line was established where hedge row was planted by one




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property owner in 1957 “for the specific purpose of creating a visible

demarcation separating what he viewed as his property from that portion of

his neighbors’ land” and “[n]one of the subsequent owners in either [party’s]

chain of title disputed the propriety of this hedge row boundary from 1957

until at least 1989[, during which time the owners all] recognized the hedge

row as the true and correct border between the properties and acted

accordingly”).

      Cobb further argues that the trial court erred in refusing to allow his

testimony about an agreement he and James Keen reached during the

1970s litigation.   Cobb claims that such testimony would have established

the dispute-and-compromise prong of a boundary by consentable line.

Cobb’s Brief at 28. The trial court prohibited such testimony under the Dead

Man’s Act.

      The so-called Dead Man’s Act, [42 Pa.C.S. 5930,] provides, inter
      alia, an exception to the general rule of competency and
      disqualifies as a witness a surviving or remaining party or other
      person whose interest is adverse to one who is dead and
      proscribes any testimony by such party or person against the
      deceased as to matters which occurred before death if the
      deceased had any right in the subject matter which has passed
      to a party of record. …[T]hree conditions must exist before any
      such witness is disqualified: (1) the deceased must have had an
      actual right or interest in the matter at issue…; (2) the interest
      of the witness - not simply the testimony - must be adverse;
      (3) a right of the deceased must have passed to a party of
      record who represents the deceased’s interest.




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In re Matthews’ Estate, 246 A.2d 412, 416 (Pa. 1968) (footnote,

quotation marks, and citations omitted).      The purpose of the statute is to

avoid “the injustice that would result from permitting a surviving party to a

transaction to testify favorably to himself and adversely to the interest of the

decedent when the representative of the decedent would be hampered in

attempting to refute the testimony by reason of the death of the decedent.”

In re Estate of Cecchine, 485 A.2d 454, 458 (Pa. Super. 1984) (internal

quotation marks and citation omitted).        “The theory is that because the

decedent’s representative is unable to present evidence regarding the

transaction, the other party to the transaction should be similarly restricted.”

Id.

      Although not recently, our Supreme Court has held that the Dead

Man’s Act prohibits a claimant to a decedent’s property under the doctrine of

consentable lines from testifying about any agreement the decedent made

during his lifetime. Reiter v. McJunkin, 45 A. 46, 47 (Pa. 1900); accord

Lieber v. Eurich, 192 A.2d 159, 160 (Pa. Super. 1963) (“Claimants to

property by adverse possession are incompetent to testify if the owner or

grantor of the property is deceased.”).   However, this law is applicable only

if James Keen had an interest in the matter at issue and KLCCR represents

James Keen’s interest.




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      “[I]t is not essential that the party asserting the dead man’s rule be

the nominal representative of the decedent; it is required, rather, that he

represent the interest of the decedent.”8 Estate of Cecchine, 485 A.2d at

457 (emphasis in original). If the party asserting the Act holds the rights of

the decedent through an inter vivos grant from the decedent, the Act

renders incompetent the testimony of the party claiming the granted

property.   See Long v. Long, 65 A.2d 683, 684 (Pa. 1949) (“[A] person

challenging a prima facie valid title of a grantee by attempting to negate the

grantor’s right to make such conveyance is asserting an interest adverse to

the grantor and, if the grantor is dead, the [Dead Man’s Act] renders the

challenger incompetent to testify in such action as to any matters occurring

prior to the grantor’s death.”).

      Here, the four Keen daughters purchased the property from their

parents on April 1, 2001, shortly before James Keen died. N.T., 4/30/2014,

at 15. In 2009, the sisters transferred the property to KLCCR, a company

owned by the four of them. Id. at 18. Thus, James Keen once had actual

rights in the overlap parcel, and KLCCR now holds those rights.      Because

8
  Accord Diel v. Beekman, 499 P.2d 37, 47 (Wash. App. 1972), overruled
on other grounds by Chaplin v. Sanders, 676 P.2d 431 (Wash. 1984) (“Our
statute renders a party-in-interest incompetent to testify to transactions
with a deceased when his adversary represents or claims through the
deceased.”) (emphasis added); Zych v. Zych, 163 N.W.2d 882, 885 (Neb.
1969) (noting that the party of record who represents the interests of the
decedent includes “any person who has succeeded to the rights of the
decedent, either by purchase, descent, or by operation of law”).


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James Keen is dead, Cobb is incompetent to testify in this action about

matters occurring between Cobb and James Keen prior to Keen’s death

which would negate Keen’s right to have transferred the overlap parcel to his

daughters. Accordingly, the trial court properly held that the Dead Man’s Act

applies to Cobb’s proposed testimony.        Reiter, 45 A. at 47 (“The right of

Grubbs had passed to the plaintiff.      Grubbs was dead. The defendant

therefore was incompetent as a witness to prove an agreement for a

consentable line between him and Grubbs in his lifetime.”).

      Cobb argues that even if the Dead Man’s Act is applicable, KLCCR

waived its protections by engaging in discovery. Cobb’s Brief at 46. It is

Cobb’s position that KLCCR waived any objection to his proposed testimony

“by serving written interrogatories on Cobb and by taking Cobb’s deposition”

during which KLCCR’s counsel “specifically inquired into matters that

occurred prior to James Keen’s death, including the verbal agreement

between Cobb and James Keen.” Cobb’s Brief at 47 (citations omitted).

      Cobb relies upon the following in support of his position: “when a

decedent before he died or a decedent’s representative has required an

adverse party to be deposed or to answer interrogatories, any objection

based upon the Dead Man’s Act to the competency of such a party to testify

at the trial is waived, even though the discovery is not offered in evidence.”




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Schroeder v. Jaquiss, 861 A.2d 885, 889 (Pa. 2004) (citing Anderson v.

Hughes, 208 A.2d 789 (Pa. 1965)).

     As KLCCR notes, nothing in Cobb’s pleadings makes reference to any

agreement he had with James Keen about a consented-to boundary line;

KLCCR therefore had no idea that Cobb was going to seek to testify about an

agreement he reached with James Keen in the 1970s until its discovery

revealed it. KLCCR’s Brief at 15. We hold that, under these circumstances,

the trial court’s ruling is not “a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as to be

clearly erroneous.”   Zuk v. Zuk, 55 A.3d 102, 112 (Pa. Super. 2012).

Therefore, we conclude that the trial court properly held that the Dead Man’s

Act precluded Cobb from testifying that James Keen consented to Cobb’s

ownership of the overlap parcel. Cobb’s third issue warrants him no relief.

     Next, Cobb claims that the trial court erred in denying him a new trial

based upon the post-trial discovery of an amended complaint and map filed

in the 1972 action.     Cobb’s Brief at 50.    Cobb acknowledges that the

documents were found in the courthouse as part of the case file. Id.

     “[T]he granting or refusal of a new trial based on after-discovered

evidence is an area addressed to the sound discretion of the court and the

exercise of this discretion by the court will be reversed only where it has

been clearly abused.”   Mar Ray, Inc. v. Starr, 452 A.2d 739, 743 (Pa.




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Super. 1982).    “The legal requirements for the grant of a new trial based

upon after-discovered evidence are well established: the evidence must have

been discovered after the trial and must be such that it could not have been

obtained at the trial by reasonable diligence, must not be cumulative or

merely impeach credibility, and must be such as would likely compel a

different result.”   Daniel v. Wyeth Pharm., Inc., 15 A.3d 909, 916 (Pa.

Super. 2011).

      The trial court denied Cobb’s motion upon its determination that the

documents “could have been easily discovered with the exercise of due

diligence.” Supplemental Trial Court Opinion, 3/11/2015, at 4. It noted that

the after-discovered evidence was listed on the docket in the 1972 case

which was “repeatedly referenced during the course of the trial” and “is and

was always a matter of public record….”           Id.   We discern no abuse of

discretion in the trial court’s ruling. Cf. Drake Mfg. Co. v. Polyflow, Inc.,

109 A.3d 250, 261 (Pa. Super. 2015) (“[T]he trial court erred by admitting

evidence during the post-trial stage that Drake could easily have submitted

during trial.”). Accordingly, no relief is due.

      With his final issue, Cobb claims two errors in the trial court’s August

6, 2014 order of judgment. First, Cobb argues that the trial court erred in

ordering judgment in favor of all defendants because it had previously

ordered the entry of judgment against all defendants as to Parcel One, and




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against all defendants other than KLCCR as to Parcel Two. Cobb’s Brief at

48.   Second, Cobb objects to the order’s reliance upon the 2009 Barrett

survey as establishing the boundaries of Cobb’s property.      He claims this

reliance was in error because Barrett surveyed KLCCR’s property, not

Cobb’s, and the survey does not indicate where the low-water mark is

located. Id. at 49.

      As to Cobb’s former argument, the docket and record clearly reflect

that judgment was entered (1) on September 4, 2013, in favor of Cobb and

against all defendants as to Parcel One; (2) on September 4, 2013 in favor

Cobb and against all persons claiming right, title, or interest in the real

property described in Cobb’s complaint other than KLCCR.9 Thus, the docket

establishes that the only one of the defendants still litigating at the time of

the August 6, 2014 judgment was KLCCR.            Accordingly, the judgment

entered on August 6, 2014 applies only to KLCCR, despite the use of

“Defendants” rather than “Defendant” in the order.10




9
  This September 4, 2013 order mistakenly excludes Keen Lake Camping &
Cottage Resort, Inc., rather than KLCCR, from the persons against whom
judgment is thereby entered. However, the parties subsequently stipulated
to the correction, and the stipulation was made an order of court on October
30, 2013.
10
   In the unlikely event that Rice Coal Company or Keen Lake Camping &
Cottage Resort, Inc. should claim in the future that it obtained judgment in
its favor by virtue of the August 6, 2014 order, this memorandum serves to
establish otherwise.


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      Regarding Cobb’s second complaint with the final judgment, the order

provides that Parcel Two, as created by the 1949 deed, is

      limited to the area set forth in the 2009 survey by Joseph
      Barrett, PLS, which lies between the Township Road and the
      low[-]water mark as identified in the April 16, 1949 [deed],
      recorded in Wayne County Deed Book 171 at page 635, as being
      the stake and stone corner and lands of Defendant KLCCR, LLC.

Order, 8/6/2014.

      Because neither the “stake and stone corner” nor the low-water mark

is shown on Barrett’s 2009 survey, the trial court’s order provides, in effect,

that Cobb owns everything stated in the Cobbs’ 1949 deed except the

overlap parcel, which belongs to KLCCR.       That does not change the fact

that Cobb’s Parcel Two west of KLCCR’s land extends to the low-water mark

in Keen’s Lake. Although the trial court correctly determined where the low-

water mark is not (i.e., it is not the zero-foot contour line), neither party

offered evidence to allow the trial court to determine where the low-water

mark actually is.   As such, the trial court did not err in relying upon the

language of the deed, rather than a non-existent survey or map, to describe

the southern boundary of Cobb’s land.

      Thus, Cobb has failed to convince us that the trial court’s August 6,

2014 order is erroneous and merits relief from this Court. The York Grp.,

Inc. v. Yorktowne Caskets, Inc., 924 A.2d 1234, 1246 (Pa. Super. 2007)




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(“[T]he appealing party bears the burden of establishing that the trial court’s

decision is erroneous.”).

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/30/2015




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