Cobb, J. v. Keen Lake ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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