J-A24036-15

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JOHN P. COBB AND NANCY M. COBB

 

 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 HEREINDESCRIBED REAL PROPERTY OTHER 

THAN PLAINTIFFS, WHOSE IDENTITY 

OR IDENTITIES ARE UNKNOWN

APPEAL OF: JOHN P. COBB 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

 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. Cobb1appeals from the December 30, 2014 judgment2entered 

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. 
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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 zerofoot 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 zerofoot 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 lowwater 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