J-A08001-20

                                2020 PA Super 181


 ROBERT FRANKS AND KELLY A.                :   IN THE SUPERIOR COURT OF
 FRANKS, H/W                               :        PENNSYLVANIA
                                           :
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :   No. 2784 EDA 2019
 STATE FARM MUTUAL AUTOMOBILE              :
 INSURANCE COMPANY                         :

           Appeal from the Judgment Entered September 4, 2019
   In the Court of Common Pleas of Bucks County Civil Division at No(s):
                             No. 2018-03954


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

DISSENTING STATEMENT BY LAZARUS, J.:                     FILED JULY 31, 2020

      I respectfully dissent.

      As the Majority correctly notes, the Statutory Construction Act requires

that, “[w]hen the words of a statute are clear and free from all ambiguity, the

letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1

Pa.C.S.A § 1921(b). Moreover, words and phrases within a statute must be

“construed according to rules of grammar and according to their common and

approved usage,” id. at § 1903(a), and must be read within the context of the

remaining statutory language. Commonwealth v. Office of Open Records,

103 A.3d 1276, 1285 (Pa. 2014). Only when the plain language of a statute

is ambiguous may courts resort to other tools of statutory construction in

order to ascertain the General Assembly’s intent. See 1 Pa.C.S.A. § 1921(c).
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      Here, the language of section 1738(c) is clear and unambiguous. The

opportunity to waive the stacked limits of coverage must be provided when

an insured “purchas[es] uninsured or underinsured motorist coverage for

more than one vehicle under a policy[.]” 75 Pa.C.S.A. § 1738(c) (emphasis

added). I do not believe the Frankses’ removal of a vehicle from their auto

insurance policy constitutes a “purchase” as contemplated by the statute. In

Barnard v. Travelers Home and Marine Ins. Co., 216 A.3d 1045 (Pa.

2019), the United States Court of Appeals for the Third Circuit presented our

Supreme Court with a certified question of law as to whether an increase in

the limits of UIM coverage on a multi-vehicle policy constitutes a “purchase”

under section 1738(c), thus requiring an insurer to obtain a new waiver of

stacking rights. The Court concluded that it does. In considering the issue,

the Court focused its attention on the common and approved usages of the

word “purchase.”     The Court looked first to Black’s Law Dictionary, which

defines the term as “[t]he act or an instance of buying.” Id. at 1051, quoting

Black’s Law Dictionary (11th ed. 2019). The Court then observed that, “[i]n

common usage, ‘to buy’ means to acquire or obtain something from paying

for it.”   Id.   Accordingly, the Court concluded that “the term ‘purchase’

requires two things: (1) the acquisition of something; and (2) payment. . . .

In order to satisfy the first, the insured must obtain something that she does

not already possess.” Id. at 1053 (emphasis added).

      Applying this rationale to the instant matter, it is clear that the Frankses

did not effectuate a “purchase” of coverage within the plain meaning of the

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language used in section 1738(c). When the Frankses deleted the 1999 Ford

Taurus from their policy, they did not “obtain something” that they did not

“already possess.” Id. To the contrary, they eliminated a portion of their

existing coverage. Nor did the Frankses make a payment of any sort. See

id. at 1051 (to purchase is to acquire or obtain something from paying for it).

To the contrary, they received a credit from State Farm in the amount of

$15.06, and their annual premiums were reduced by a total of $500.00.

Accordingly, applying the definition of the word “purchase” as set forth in

Barnard, it is clear that the deletion of a vehicle from a policy does not result

in a “purchase” as contemplated by section 1738(c).

      The Majority’s reliance on Shipp v. Phoenix Ins. Co., 51 A.3d 219 (Pa.

Super. 2012), for the proposition that a new stacking waiver is required

whenever there is any change in the potential amount of stacked coverage is

misplaced. In Shipp, we held that a new waiver of stacked coverage was not

required when an insured replaced one vehicle on his policy with another

vehicle, since the insured’s UM/UIM coverage remained the same. The Court

reviewed Sackett v. Nationwide Mut. Ins. Co., 919 A.2d 194 (Pa. 2007)

(“Sackett I”) (addition of new vehicle to existing policy constitutes purchase

of new coverage under section 1738), Sackett v. Nationwide Mut. Ins. Co.,

940 A.2d 329 (Pa. 2007) (“Sackett II”) (extension of coverage under after-

acquired-vehicle provision to vehicle added to pre-existing multi-vehicle policy

is not new purchase of coverage under section 1738), and Smith v. The

Hartford Ins. Co., 849 A.2d 277 (Pa. Super. 2004) (increase in unrelated

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liability limits does not require new waiver of UM/UIM benefits), and concluded

that “the matter of importance in all of [those] cases, as well as in section

1738, pertains only to the UM/UIM policy coverage, whether it has changed,

and whether a new waiver of stacked coverage is required.” Shipp, 51 A.3d

at 224 (emphasis added). The Majority reads into the emphasized language

an import that I do not believe the Shipp Court intended to convey. In Shipp,

the Court was not confronted with a situation—as here—in which stacked

UM/UIM coverage decreased. Thus, to the extent that the foregoing language

may be read to suggest that any change in stacked coverage—either an

increase or decrease—requires a new stacking waiver, it is merely dicta and

not controlling here. Indeed, had the legislature intended to require a new

waiver every time a named insured changes uninsured or underinsured

motorist coverage for more than one vehicle under a policy, it could have

simply replaced the word “purchasing” with “changing” in section 1738(c). It

did not do so.

      In sum, in removing a vehicle from their policy, the Frankses did not

make a “purchase” of coverage as contemplated by the plain language of

section 1738(c). Accordingly, I would affirm the decision of the trial court.




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