J. A33014/15
                             2017 PA Super 96



JOHN M. PERGOLESE AND            :           IN THE SUPERIOR COURT OF
PEGGY DOUG PERGOLESE             :                 PENNSYLVANIA
                                 :
                v.               :
                                 :
THE STANDARD FIRE INSURANCE CO., :
ONE OF THE TRAVELERS INSURANCE :
COMPANIES D/B/A TRAVELERS        :
PROPERTY CASUALTY AND TRAVELERS :
GROUP                            :
                                 :
APPEAL OF: THE STANDARD FIRE     :
INSURANCE CO.,                   :               No. 1467 EDA 2014
                                 :
                   Appellant     :


              Appeal from the Judgment Entered April 11, 2014,
            in the Court of Common Pleas of Montgomery County
                        Civil Division at No. 10-36947


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


OPINION BY FORD ELLIOTT, P.J.E.:                   FILED APRIL 11, 2017

      Standard Fire Insurance Company (“Standard Fire”) appeals from the

judgment entered April 11, 2014, in this declaratory judgment action. The

trial court granted appellees’ motion for summary judgment after finding

that they were entitled to stacking of underinsured motorist benefits. After

careful review, we affirm.

                  The relevant facts and procedural history
            underlying this appeal are as follows. Appellees are
            husband and wife who reside in Worcester,
            Montgomery County. In the early 1990s, Appellees
            applied for personal automobile insurance with


* Retired Senior Judge assigned to the Superior Court.
J. A33014/15


          Standard Fire’s predecessor in interest, Aetna
          Insurance Company, through their insurance agent.
          (Action for Declaratory Judgment (“Complaint”), filed
          12/17/10, at ¶ 4; Answer with New Matter, filed
          4/28/11, at ¶¶ 34-35; Appellant’s Motion for
          Summary Judgment, filed 12/12/13 (“Motion”), at
          ¶ 2). On July 27, 1994, Appellees signed an Aetna
          Option Selection Form indicating that they chose
          non-stacked underinsured motorist (“UIM”) coverage
          on policy number 020185337-101-1 (“20185337”).
          (Motion, Exhibit C).

                 On May 29, 1996, Peggy Pergolese signed a
          rejection of stacked UIM coverage form for this
          policy on behalf of Appellees with John Pergolese’s
          full knowledge and consent. (Motion at ¶ 3). At that
          time, the insurance policy covered four (4) vehicles.
          (Id. at ¶ 4). Specifically, for the 1996 coverage
          year, the policy insured the following vehicles: 1989
          Chevy Corvette, 1989 Mazda B-2200, 1988 Plymouth
          Voyager and 1993 Mazda MX-6. (Cross Motion for
          Summary Judgment, filed 1/13/14 (“Cross Motion”),
          at ¶¶ 7-8; Exhibits F and G). On August 5, 1996,
          Appellees executed a form waiving stacked UIM
          coverage for the second policy, number 036766029-
          101-1 (“36766029”). (Cross Motion at ¶ 6; Exhibit
          E). The second policy provided coverage for one (1)
          vehicle.[Footnote 2]

               [Footnote 2] The Travelers system does
               not allow the placement of more than
               four (4) personal vehicles on a policy at
               one time. (N.T. Deposition of Cody D.
               Gilmore, 7/22/13 (Cross Motion, Exhibit
               R) at 58-59[)]; [t]herefore, policy
               holders wishing to insure more than four
               personal vehicles at a time are required
               to obtain a second policy. (Id.).

                On or about November 19, 1996, Appellees
          sought to remove the 1988 Plymouth Voyager from
          coverage on policy number 20185337 and replace it
          with a 1993 Nissan Pathfinder. (Cross Motion at ¶ 9;
          Auto Change Form, Exhibit H).        The amended


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          declaration sheet effective November 19, 1996
          reflected coverage for the following vehicles: 1989
          Chevy Corvette; 1989 Mazda B-2200, 1993 Nissan
          Pathfinder and 1993 Mazda MX-6. (Id. at ¶ 10;
          Exhibit I).   Appellees renewed the policy every
          six (6) months and the declaration sheets showed
          non-stacked UIM benefits in the amount of
          $100,000.00.     The declaration sheets on policy
          number 20185337 dated up to and including
          January 27, 1998, also reflected coverage for the
          same four (4) vehicles. (Id. at ¶ 11; Exhibits J, K
          and L).

                On February 23, 1998, Appellees asked their
          insurance agent to remove the 1989 Mazda B-2200
          from their policy.        Unlike their request on
          November 19, 1996, Appellees did not add a
          replacement vehicle. (Cross Motion at ¶ 12; Auto
          Change Form, Exhibit M). The amended declarations
          page effective February 23, 1998, lists coverage for
          only three (3) vehicles and a decreased premium.
          (Id. at ¶ 13; Exhibit N).

                On April 8, 1998, forty-four (44) days later,
          John Pergolese called Appellees’ insurance agent to
          request auto insurance coverage for an additional
          vehicle before he took possession. Mr. Pergolese
          requested that the agent fax a copy of the insurance
          card so that Mr. Pergolese would have proof of
          insurance before taking ownership of a 1990 Ford
          F-150. (Id. at ¶ 14; Auto Change Form, Exhibit O).
          As requested, the agent faxed a copy of the
          insurance card with an effective date of April 8,
          1998, to the location where Mr. Pergolese was
          obtaining the tags and title. (Id. at ¶ 14-15; Exhibit
          P). The amended declarations page effective April 8,
          1998, showed the premium increase and listed four
          vehicles as follows: 1989 Chevy Corvette, 1993
          Nissan Pathfinder, 1993 Mazda MX-6 and 1990 Ford
          F-150. (Id. at ¶ 16, 18; Exhibit Q).

                Appellees’ Standard Fire Auto Policy provides in
          pertinent part as follows:



                                  -3-
J. A33014/15


          J.   “Your covered auto” means:

               1.   Any    vehicle     shown     in    the
                    Declarations.

               2.   Any of the following types of
                    vehicles on the date you become
                    the owner:

                    a.    a private      passenger
                          auto; or

                    b.    a pickup or van.

                    This provision (J.2.) applies only if:

                    a.    you acquire the vehicle
                          during    the    policy
                          period;

                    b.    you ask us to insure it
                          within 30 days after
                          you    become      the
                          owner; and

                    c.    with   respect   to    a
                          pickup or van, no other
                          insurance         policy
                          provides coverage for
                          that vehicle.

                    If the vehicle you acquire replaces
                    one shown in the Declarations, it
                    will have the same coverage as the
                    vehicle it replaced. You must ask
                    us to insure a replacement
                    vehicle within 30 days only if:

                    a.    you wish to add or
                          continue Damage to
                          Your Auto Coverages;
                          or




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J. A33014/15


                      b.    it is a pickup or van
                            used in any “business”
                            other than farming or
                            ranching.

          (Policy No. 20185337, Personal Auto Policy at 1;
          Exhibit A to both Motions for Summary Judgment)
          (emphasis added).

                Appellant did not request a new waiver of
          stacked coverage from Appellees after the addition of
          the 1990 Ford F-150 to the three vehicle policy
          under 20185337. (Cross Motion at ¶ 23). Appellees
          continued to insure the same four vehicles under
          policy number 20185337 through July 27, 2001.
          (Id. at ¶ 24; Exhibit A). For the period of July 30,
          2000, to July 30, 2001, Appellees insured one
          vehicle, a 1992 Toyota Pickup under policy number
          36766029. (Id. at ¶ 25; Exhibit B).

                 On July 23, 2001, John Pergolese suffered
          severe injuries when a drunk driver rear ended his
          1993 Mazda MX-6. (Motion at ¶ 15; Cross Motion at
          ¶ 26).     Appellees timely submitted a claim for
          underinsured motorist benefits to Appellant upon
          receiving the liability policy limits from the tortfeasor
          and after receiving Appellant’s consent to settle and
          waiver of subrogation. (Complaint at ¶ 8; Answer at
          ¶ 8; Motion at ¶ 16). Appellees asserted that they
          were entitled to stack UIM benefits according to the
          number of vehicles on their two (2) policies up to a
          limit of $500,000.00. (Complaint at ¶ 27; Motion at
          ¶ 17). Appellant denied that Appellees were entitled
          to stack their policy benefits. (Motion at ¶ 18).

                On December 17, 2010, Appellees filed an
          action for declaratory judgment. On April 28, 2011,
          Appellant filed its answer with new matter.
          Appellees replied to the new matter on June 28,
          2011. The parties conducted discovery, including
          requests for admissions and depositions.

                In particular, an underwriter for Travelers
          Insurance testified at deposition as follows:


                                    -5-
J. A33014/15



          Q.   Well, my question to you was from your
               understanding       of   Travelers,    the
               insurance, if someone owns four vehicles
               on a policy and they delete a car, so now
               there’s [sic] three cars on that policy,
               and a month and a half or two months
               later that insured buys a new car and
               asks for it to be added to the policy?

          A.   That would be an additional vehicle.

          Q.   Okay. That would be an addition, an
               additional vehicle; is that correct?

          A.   That’s correct.

          Q.   All right. That would not be considered a
               replacement vehicle?

          A.   Not if it was -- if it was not replaced at
               that time.

          Q.   Okay.     So, meaning that it’s your
               understanding at Travelers that dealing
               with replacement vehicles is when cars
               are added and deleted at the same time?

          A.   Correct.

                                 *   *   *   *

          Q.   All right. I don’t want -- so somebody
               has four cars and they delete a vehicle
               on that policy, all right? And in this case
               John Pergolese owned four cars on the
               policy, and one of the cars he deleted,
               okay, because it was junked or there was
               an issue. It didn’t run anymore.

          A.   Okay.




                                     -6-
J. A33014/15


          Q.   And then a month and a half later he
               buys a car and adds a new car to that
               policy.

          A.   That would be an additional vehicle.

          Q.   Okay.    That would not be considered
               replacement because it wasn’t done at
               the same time, but that would [be] an
               additional vehicle?

          A.   That is correct.

          Q.   Because when they’re advising the agent
               of the new car, he’s purchasing coverage
               on that new car?

          A.   That is correct.

          (N.T. Deposition of Cody D. Gilmore, 7/22/13 (“N.T.
          Gilmore Deposition”), at 54-56). Mr. Gilmore also
          agreed that the addition of the vehicle increased the
          premium as a policy change. (Id. at 68).

                Mr. Gilmore explained that “the agents request
          the majority of changes, and they process them on
          [Travelers’] system within the office, their office.”
          (Id. at 19). The addition of a vehicle to a policy is
          never done by endorsement, the addition is
          considered a policy change. (Id. at 32-33). At
          Travelers “[a]n endorsement is a broadening or
          reduction or change in a coverage level.” (Id. at
          33). Mr. Gilmore also testified as follows:

          Q.   Is it your understanding that the
               after-acquired clause that we just
               referenced is a provision in the policy
               that insures a new vehicle from the time
               that insured gets the vehicle until he
               calls somebody from Travelers to tell
               them that he just bought a new car and
               wants coverage?




                                  -7-
J. A33014/15


          A.   This provides the coverage between the
               time that the vehicle -- they own the
               vehicle and the time they contact the
               agent.

          Q.   Okay. So once -- so, right, so the car is
               insured from the time that they buy it up
               until they call Travelers to tell -- to tell
               them about it?

          A.   Right, that they have advised that they -
               - once they have purchased and they are
               the owner of the vehicle, this is when
               this -- that’s where they obtain their
               coverage automatically is once they own
               the vehicle.

          Q.   All right. What does Travelers require, if
               you know, from the insured once they
               call to say I got a new car whatever day
               it was and I want it insured?

          A.   The agent would inquire if there was a
               lienholder, the VIN number, and they
               would make the change to the policy to
               add it at that time.

          Q.   Okay. So, once they got -- if there’s a
               lienholder, if there is the VIN, then that -
               - then would it be -- in this case, it was
               an agent that got the call. Then that
               agent would add the policy?

          A.   That’s correct.   They would process the
               change.

          (Id. at 44-45).

                 Appellant filed its Motion for summary
          judgment on December 12, 2013.             Appellees
          responded in opposition on January 13, 2014, and
          filed their cross motion at the same time. Appellant
          replied to the cross motion on February 11, 2014.
          Upon review of the record, the issues presented to


                                  -8-
J. A33014/15


            this court, the applicable law and after hearing
            argument, the undersigned denied Appellant’s Motion
            and granted Appellees’ cross motion by separate
            orders dated April 11, 2014. Appellant filed a notice
            of appeal from the court’s order granting the cross
            motion on May 8, 2014. On May 9, 2014, Appellant
            filed a second notice of appeal from the court’s order
            denying their Motion. The undersigned issued an
            order on May 27, 2014, directing Appellant to file a
            Concise Statement of the Errors Complained of on
            Appeal (“concise statement”). Appellant filed two
            concise statements on June 6, 2014.

Trial court opinion, 5/29/15 at 2-9.1

      Appellant, Standard Fire, has raised the following issues for this court’s

review:

            1.    Did the trial court err in granting summary
                  judgment in favor of Plaintiffs/Appellees and in
                  denying Defendant’s/Appellant’s Motion for
                  Summary Judgment, where vehicles were
                  replaced under the continuous after-acquired
                  vehicle provision of the Standard Fire Policy,
                  and were not replaced by endorsement or
                  through the purchase of new insurance,
                  therefore not requiring the execution of new
                  waivers    rejecting   stacked     underinsured
                  motorist benefits?

            2.    Even if this Court determines that the Ford
                  F-150 constituted an additional vehicle under
                  the Policy, did the trial court still err in
                  granting summary judgment in favor of
                  Plaintiffs/Appellees   and      in     denying
                  Defendant’s/Appellant’s Motion for Summary
                  Judgment, where the after-acquired vehicle
                  provision of the Standard Fire Policy provided
                  for continuous coverage?

1
  On July 13, 2015, this court quashed the appeal at No. 1466 EDA 2014,
taken from the April 11, 2014 order denying appellant’s motion for summary
judgment, as unnecessary and duplicative.


                                        -9-
J. A33014/15



Appellant’s brief at 5.

                  We begin our analysis with our standard of
            review:

                   When reviewing a trial court’s decision to
                   grant a motion for summary judgment,
                   we adhere to the following standard and
                   scope of review.

                      We view the record in the light
                      most favorable to the nonmoving
                      party, and all doubts as to the
                      existence of a genuine issue of
                      material fact must be resolved
                      against the moving party. Only
                      where there is no genuine issue as
                      to any material fact and it is clear
                      that the moving party is entitled to
                      a judgment as a matter of law will
                      summary judgment be entered.
                      Our scope of review of a trial
                      court’s order granting or denying
                      summary judgment is plenary, and
                      our standard of review is clear the
                      trial court’s order will be reversed
                      only where it is established that
                      the court committed an error of
                      law or abused its discretion.

            Jones v. Unitrin Auto and Home Insurance Co.,
            40 A.3d 125, 126-127 (Pa.Super. 2012), quoting
            Erie Insurance Exchange v. Larrimore, 987 A.2d
            732, 736 (Pa.Super. 2009) (citation omitted).
            Jones further noted that “ordinary summary
            judgment procedures are applicable to declaratory
            judgment actions.” Id. at 127.

Shipp v. Phoenix Ins. Co., 51 A.3d 219, 221 (Pa.Super. 2012).

                  This case involves the interpretation of the
            following statute:



                                     - 10 -
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               § 1738. Stacking of uninsured and
               underinsured benefits and option to
               waive

               (a)   Limit for each vehicle.—When
                     more than one vehicle is insured
                     under one or more policies
                     providing      uninsured       or
                     underinsured motorist coverage,
                     the stated limit for uninsured or
                     underinsured     coverage    shall
                     apply separately to each vehicle
                     so insured.       The limits of
                     coverages available under this
                     subchapter for an insured shall
                     be the sum of the limits for each
                     motor vehicle as to which the
                     injured person is an insured.

               (b)   Waiver.—Notwithstanding the
                     provisions of subsection (a), a
                     named insured may waive
                     coverage providing stacking of
                     uninsured     or    underinsured
                     coverages in which case the
                     limits of coverage available
                     under the policy for an insured
                     shall be the stated limits for the
                     motor vehicle as to which the
                     injured person is an insured.

               (c)   More than one vehicle.—Each
                     named     insured    purchasing
                     uninsured    or    underinsured
                     motorist coverage for more than
                     one vehicle under a policy shall
                     be provided the opportunity to
                     waive the stacked limits of
                     coverage and instead purchase
                     coverage    as    described   in
                     subsection (b). The premiums
                     for an insured who exercises
                     such waiver shall be reduced to



                                 - 11 -
J. A33014/15


                       reflect the different cost of such
                       coverage.

           75 Pa.C.S.A. § 1738 (in pertinent part).

Id. at 221-222.

     As in Shipp,

           This case particularly involves the interpretation of
           section 1738(c) and whether the addition and/or
           substitution of a new vehicle under the policy
           constitutes a purchase of additional UM/UIM
           coverage, requiring the insurer to present the
           insured with a new opportunity to waive stacked
           coverage. This question has been partially answered
           by our supreme court in two separate decisions
           involving the same parties.

           In Sackett v. Nationwide Mutual Insurance Co.,
           591 Pa. 416, 919 A.2d 194 (2007) (“Sackett I”),
           the insured acquired a policy for two vehicles and
           initially waived stacked UM/UIM coverage in the
           amount of $200,000 ($100,000 unstacked). The
           insured later added a third vehicle to the policy, and
           the insurer did not provide the insured with the
           opportunity to again waive stacked coverage.
           Following an accident, the insured filed a declaratory
           judgment action seeking $300,000 in stacked
           coverage under section 1738 because the insurer
           failed to provide the insured with the opportunity to
           waive stacked UM/UIM coverage at the time the third
           vehicle was purchased and added to the policy.

           The trial court ruled that when the same named
           insured simply adds a vehicle to an existing
           insurance policy, the insurer does not need to
           acquire a second waiver of stacked UM/UIM
           coverage. This court affirmed that decision. On
           appeal, however, the Sackett I court held that the
           addition of a new vehicle to an existing multi-vehicle
           policy constitutes a purchase under section 1738(c),
           such that the insurer was responsible for again
           acquiring a waiver to stacked coverage.


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J. A33014/15



              Following this decision, the supreme court granted
              re-argument to explore the impact of newly acquired
              vehicle clauses, almost universally contained in
              vehicle insurance policies, on its decision in
              Sackett I.    In Sackett v. Nationwide Mutual
              Insurance Co., 596 Pa. 11, 940 A.2d 329 (2007)
              (“Sackett II”), the court noted that there are two
              common forms used for newly acquired vehicle
              clauses. The first type provides automatic coverage
              upon acquisition of the additional new vehicle, but
              lapses after a specified, finite amount of time,
              requiring the insured to apply for new coverage
              thereafter.   The second type provides continuing
              coverage, usually requiring the insured only to give
              notice that a new vehicle has been acquired. The
              Sackett II court held that the second type of newly
              acquired vehicle clause does not trigger an obligation
              by the insurer to obtain a second waiver of stacked
              coverage; however, where the newly acquired
              vehicle clause is of the lapsing, finite variety,
              Sackett I still applies and the insurer must again
              acquire a waiver of stacked coverage.[Footnote 1]

                   [Footnote 1] Ultimately, on remand to
                   the trial court, the court conducted a
                   non-jury trial and again ruled that the
                   Sacketts could stack their coverage. On
                   appeal, this court found that newly
                   acquired     vehicle     provisions     of
                   Nationwide’s policy with the Sacketts was
                   of the lapsing finite variety which the
                   supreme court had held to require the
                   re-obtaining of waiver by the insurer. As
                   Nationwide had failed to re-obtain such
                   waiver, this court ruled that the trial
                   court properly permitted the coverage to
                   be stacked.     Sackett v. Nationwide
                   Mutual Insurance Co., 4 A.3d 637
                   (Pa.Super.    2010)    (“Sackett    III”),
                   appeal denied,       Pa.     , 34 A.3d 83
                   (2011).

Id. at 222.


                                      - 13 -
J. A33014/15


      In Bumbarger v. Peerless Indem. Ins. Co., 93 A.3d 872 (Pa.Super.

2014) (en banc), this court’s most recent en banc pronouncement on the

stacking issue, we held that when an insured takes ownership of a vehicle

and simultaneously informs his insurer of the new vehicle, the language and

purpose of the after-acquired vehicle provision in the policy is never

triggered.    An after-acquired vehicle provision merely extends existing

coverage until the insured notifies the insurer that he wishes to insure the

new vehicle under his policy with the insurer.      The after-acquired vehicle

clause extends temporary, stop-gap coverage, thereby protecting the

insured until the policy can be amended.2 The addition of the vehicle to the

policy by the insurer, pursuant to Sackett I and III, requires a new


2
             Initially,  an    after-acquired-vehicle   clause    is
             essentially a contractual grace period, during which
             the insurer will automatically provide coverage for a
             newly acquired vehicle for a brief period, until either
             other insurance is purchased or the insurer is
             informed of the new vehicle and the insured asks to
             have the new vehicle put on the existing policy. This
             clause gives an insured the time to decide what
             insurance to ultimately purchase.       Otherwise, an
             insured would be required to purchase insurance
             contemporaneously with the purchase of the
             car.[Footnote 5]

                   [Footnote 5] This might not be a
                   hardship when purchasing a vehicle
                   through a dealership, but might prove
                   burdensome when buying a car through
                   a person to person transaction.

Toner v. Travelers Home and Marine Ins. Co., 137 A.3d 583, 588
(Pa.Super. 2016).


                                     - 14 -
J. A33014/15


stacking waiver. In Bumbarger, we did not need to look to the analysis of

Sackett II which only addressed the implication of the after-acquired

vehicle clause.3

      In that case, Peerless issued Helen Bumbarger (“Helen”) a personal

automobile policy providing motor vehicle coverage for two vehicles, a

1980 Ford F-150 pick-up truck and a 1998 Ford Taurus. Id. at 873. Helen

rejected stacking of UM/UIM coverage by completing the appropriate forms.

Id. The Bumbarger court described the salient facts as follows:

            On July 24, 2007, Helen purchased a third vehicle, a
            1995 Ford F–150 pick-up truck. That same day, she
            notified her insurance agent of the purchase and
            requested that it be added to and insured under the
            Policy. The insurance agent notified Peerless about
            the third vehicle and the vehicle was added to the
            Policy through a validly executed endorsement,
            effective July 24, 2007. On October 2, 2009, Helen
            notified her insurance agent that she had purchased
            a fourth vehicle, a 1985 Ford Bronco; she requested
            that this vehicle also be added to and insured under
            the Policy. The agent notified Peerless and coverage
            of the fourth vehicle became effective as of the date
            of purchase; unlike the third vehicle, this fourth

3
  However, it is important to note that in Sackett II, “where coverage under
an after-acquired-vehicle clause is expressly made finite by the terms of the
policy, Sackett I controls and requires the execution of a new UM/UIM
stacking waiver upon the expiration of the automatic coverage in order for
the unstacked coverage option to continue in effect subsequent to such
expiration.” Sackett II, 940 A.2d at 334 (citation and footnote omitted).
In other words, when an insured notifies an insurer that he has obtained an
additional vehicle and that vehicle is added to the policy by the insurer, then
the after-acquired vehicle extended coverage expires immediately and a new
stacking waiver is required. In most cases, according to Sackett II, only
replacement vehicles would be subject to the extended continuous coverage
provisions of an after-acquired vehicle provision in that one vehicle merely
replaces another under the same conditions and coverages of the policy.


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           vehicle was not added by way of endorsement, but
           rather its addition was reflected by an amended
           declarations page.

           On December 3, 2009, while driving the 1995 Ford
           pick-up (third vehicle) Helen was involved in a motor
           vehicle accident with an uninsured vehicle; she
           subsequently submitted a claim for UM benefits
           under the Policy.      Helen claimed that she was
           entitled to stacked UM benefits; Peerless maintained
           that the original waiver of stacked UM/UIM benefits
           under the Policy, executed on May 17, 2007,
           remained in effect.

Id. at 873-874 (footnote omitted).

     The trial court granted summary judgment for the Bumbargers, finding

that because the third vehicle was added to the policy pursuant to an

endorsement, the vehicle was effectively added to the policy’s declarations

and was covered under the general terms of the policy and not the

newly-acquired-vehicle clause.   Id. at 874.     Therefore, the trial court

determined that Sackett I required Peerless to obtain a new stacking waiver

from the Bumbargers when the third vehicle was added to the policy.

Because Peerless failed to do so, the Bumbargers were entitled to stacked

UM coverage as a matter of law. Id. Furthermore, since the Bumbargers

were entitled to stacking under the general terms of the policy, the trial

court did not determine the duration of any coverage under the policy’s

newly-acquired-vehicle clause as discussed in Sackett II. Id. at n.6.




                                     - 16 -
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      On appeal, this court affirmed, finding that because the Bumbargers

added the third vehicle to the policy by way of endorsement, the

newly-acquired-vehicle clause was never triggered:

              [I]n both Sackett and this case, the vehicles were
              added to an existing policy; they were not added to
              replace a vehicle already covered under the policy.
              Moreover, although the policies in both Sackett and
              the instant case had after-acquired vehicle clauses,
              because the additional cars were added on pursuant
              to the policy’s endorsement provision immediately
              after being purchased and were placed on the
              policy’s declarations’ page, the after-acquired vehicle
              clauses became irrelevant.

Id. at 878. “Here, the third vehicle added to the Peerless policy in July 2007

was added by endorsement at the time of purchase onto the declarations

page of the Policy; at this point, the vehicle was covered by the original

policy; therefore, the newly-acquired vehicle clause was not triggered.” Id.

Relying on Sackett I and Sackett III, this court in Bumbarger concluded

that the Bumbargers were statutorily entitled to the stacked limits of

UM coverage:

              Therefore, because the Bumbargers added their third
              vehicle to the Peerless Policy by way of an
              endorsement, the new vehicle was covered under
              the general terms of the Peerless policy and not its
              after-acquired vehicle clause. Sackett III, supra.
              Moreover, because this new vehicle was added to the
              Peerless Policy before the Bumbargers’ accident,
              Peerless was required, under Sackett I, to obtain a
              new waiver from the Bumbargers declining stacked
              coverage. Id.

Id. at 879.



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          As in Bumbarger, the policy in the instant case includes a

newly-acquired-vehicle clause which does not apply to any vehicles shown in

the Declarations.      See Bumbarger, 93 A.3d at 878 (“However, for this

coverage to apply to a ‘newly acquired auto’ which is in addition to any

vehicle shown in the Declarations, you must ask us to insure it within

14 days after you become the owner,” quoting Peerless Automobile Policy,

Personal Auto Special Provisions (Pennsylvania Definitions) at Section K.2

(emphasis in Bumbarger)). Here, appellees notified their agent of the new

vehicle, the 1990 Ford F-150, and requested proof of coverage before the

purchase was completed. The agent then faxed a copy of the insurance card

and issued amended declarations pages reflecting coverage of the new

vehicle      at   an   increased   premium.       As   in   Bumbarger,    the

after-acquired-vehicle provision in the Standard Fire policy is simply

inapplicable.     Therefore, we need not consider whether it is continuous or

finite.    Pursuant to Sackett I, Sackett III, and Bumbarger, appellees’

addition of the 1990 Ford F-150 to the policy constituted a new “purchase”

of UM/UIM coverage under Section 1738 of the MVFRL and required the

execution of a new UM/UIM stacking waiver.

          We find appellant’s reliance upon Shipp, supra, and Toner, supra, to

be misguided. In Shipp, the policy at issue had an identical after-acquired-

vehicle clause as the policy in this case. Shipp, 51 A.3d at 223. However,

Shipp involved a replacement for an existing vehicle, not an additional



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vehicle being added to the policy.     Id. at 222-223.     The after-acquired-

vehicle clause of the policy at issue in Shipp provided continuing,

uninterrupted coverage on a replacement vehicle without notice unless

collision coverage was added or continued or a business vehicle was

involved.   Id. at 223.   The court in Sackett II, as discussed above, held

that continuing coverage subject only to a notice requirement did not require

the insurer to re-obtain waiver of stacked UM/UIM coverage. Id. Since the

insureds in Shipp simply replaced one vehicle with another at the same

time, there was no change in the amount of UM/UIM coverage available to

the Shipps, and the only change was in the identity of the covered vehicle.

Id. at 224. As such, no new insurance coverage was purchased and Phoenix

was not required to obtain a new waiver of stacked coverage from the

Shipps. Id.

      Here, by contrast, the 1990 Ford F-150 was not a replacement vehicle.

Rather, it was added to the policy 44 days after appellees removed the 1989

Mazda B-2200 from their policy.      At that time, the amended declarations

pages listed only three vehicles and a decreased premium. Forty-four days

later, appellees notified their insurance agent of their intention to purchase

the 1990 Ford F-150 and amended declarations pages were issued.           The

1990 Ford F-150 was not a replacement vehicle, as admitted by Mr. Gilmore,

appellant’s underwriter. Therefore, Shipp is inapposite.




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       Appellant also cites Toner, in which it was determined that the

insurer, Travelers, was not required to provide Toner with a new waiver of

stacking form when she added cars to her single vehicle policy. However, in

Toner, the after-acquired-vehicle clause was at issue. Toner, 137 A.3d at

592.    As such, Toner is distinguishable.            We determine that the case

sub judice is controlled by our supreme court’s decisions in Sackett I,

Sackett III, and this court’s en banc decision in Bumbarger.

       Finally, appellant argues that the trial court should not have permitted

inter-policy   stacking   where    the     stacking    waiver   applicable   to   the

single-vehicle policy remained valid and in effect at the time of the accident.

(Appellant’s brief at 36 n.5.)     According to appellant, at most, appellees

would be entitled to $400,000 of stacked UIM coverage, not $500,000. This

issue was not raised in the court below or in appellant’s Pa.R.A.P. 1925(b)

statement.     Therefore, it is deemed waived.           Pa.R.A.P. 1925(b)(4)(vii);

Pa.R.A.P. 302(a).

       Judgment affirmed.



       Strassburger, J. files a Concurring Opinion.

       Stabile, J. files a Dissenting Opinion.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/11/2017




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