J-A22002-22

2022 PA Super 221

ERIE INSURANCE EXCHANGE

v.

ELIZABETH BACKMEIER, 

INDIVIDUALLY AND IN HER 

CAPACITY AS THE EXECUTRIX OF 

THE ESTATE OF ANDREW J. 

BACKMEIER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 323 WDA 2022

Appeal from the Judgment Entered March 7, 2022

In the Court of Common Pleas of Erie County Civil Division at No(s): No. 

11590-2021

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

OPINION BY OLSON, J:. FILED: DECEMBER 28, 2022

Appellant, Elizabeth Backmeier, individually and in her capacity as the 

executrix of the Estate of Andrew J. Backmeier, appeals from a March 7, 2022 

declaratory judgment entered in the Court of Common Pleas of Erie County. 

The judgment awarded $100,000.00 in favor of Appellant, and against Erie 

Insurance Exchange (“Erie Insurance”), after the trial court granted Erie 

Insurance’s motion for judgment on the pleadings and denied Appellant’s 

cross-motion for judgment on the pleadings. We affirm.

The trial court summarized the factual history as follows:

The facts of this case are undisputed. On September 25, 2020, 

[Appellant’s son,] Andrew Backmeier, was riding his bicycle when 

he was struck[ and killed] by the [underinsured motorist’s] 

vehicle. [Appellant] sought recovery through her insurance 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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carrier[, Erie Insurance,] for underinsured motorist [(“UIM”)]

coverage [] provided by her two insurance policies[.] The two 

[insurance] policies each provided $100,000[.00] in UIM benefits 

per [person], $300,000[.00] per occurrence, unstacked. 

[Appellant] executed stacking waivers on both policies. Both 

[insurance] policies contained a "Limit of Protection" provision 

which capped total recovery under all household policies at the 

highest limit available under any single policy. [Erie Insurance]

tendered a total of $100,000[.00] of UIM coverage ($50,000[.00]

from each policy) pursuant to the "Limit of Protection" clause[.]

Trial Court Opinion, 3/7/22, at 1.

On July 21, 2021, Erie Insurance filed a complaint for declaratory

judgment against Appellant, asking the trial court to declare, inter alia, that 

Appellant’s total recovery of UIM benefits under the applicable insurance 

policies should be set at $100,000.00. Erie Insurance’s Complaint, 7/21/21, 

at 6. On September 21, 2021, Appellant filed an answer to the complaint, as 

well as a counterclaim for declaratory judgment, asking the trial court to 

declare that the total recovery of UIM benefits due under the applicable 

insurance policies should be set at $200,000.00. Appellant’s Answer, New 

Matter, and Counterclaim, 9/21/21, at unnumbered page 5. Erie Insurance 

filed a reply to Appellant’s counterclaim on October 8, 2021, which raised, as 

new matter, the assertion that, inter alia, Appellant’s counterclaim failed to 

state a claim upon which relief could be granted pursuant to the terms of the 

two applicable insurance policies. Erie Insurance’s Reply and New Matter, 

10/8/21, at 6-8. Appellant filed a reply to Erie Insurance’s new matter on 

October 26, 2021.
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On November 22, 2021, Erie Insurance filed a motion for judgment on 

the pleadings, as well as a brief in support thereof. On January 7, 2022, the 

trial court granted Erie Insurance’s motion for judgment on the pleadings. In 

its order, the trial court noted that Appellant did not file a response to Erie 

Insurance’s motion for judgment on the pleadings. Trial Court Order, 1/7/22. 

On January 13, 2022, Appellant filed a motion for reconsideration of the trial 

court’s January 7, 2022 order, asserting that the parties stipulated Appellant 

had until January 23, 2022, to file a response to Erie Insurance’s motion for 

judgment on the pleadings and that the trial court granted said motion 

prematurely without providing Appellant the opportunity to file a response by 

the agreed upon date. Appellant’s Motion for Reconsideration, 1/7/22. On

January 13, 2022, the trial court granted Appellant’s motion for 

reconsideration and vacated its January 7, 2022 order. Trial Court Order, 

1/13/22. On January 21, 2022, Appellant filed (1) a motion for leave to file 

an amended answer, new matter, and counterclaim to Erie Insurance’s 

complaint, having attached thereto a copy of the proposed answer; (2) a 

cross-motion for judgment on the pleadings; and (3) a response in opposition 

to Erie Insurance’s motion for judgment on the pleadings. On January 28, 

2022, the trial court granted Appellant’s motion to file an amended answer, 

new matter, and counterclaim, which Appellant filed that same day. On 

February 2, 2022, Erie Insurance filed a response, as well as a brief, in 

opposition to Appellant’s cross-motion for judgment on the pleadings. 

Appellant filed a supplemental brief in opposition to Erie Insurance’s motion 
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for judgment on the pleadings on February 14, 2022. On February 17, 2022, 

Erie Insurance filed a response to Appellant’s amended answer, new matter, 

and counterclaim, and Appellant filed a reply to Erie Insurance’s response on 

February 23, 2022. Finally, on February 24, 2022, Erie Insurance filed a 

supplemental brief in opposition to Appellant’s cross-motion for judgment on 

the pleadings. On March 7, 2022, the trial court entered declaratory judgment 

in the amount of $100,000.00 in favor of Appellant and against Erie Insurance. 

The $100,000.00 award reflected the trial court’s determination that Erie 

Insurance was entitled to judgment on the pleadings and the trial court’s 

further determination that Appellant’s cross-motion for judgment on the 

pleadings should be denied. This appeal followed.1

Appellant raises the following issues for our review:

[1.] Whether [Appellant] is entitled to collect the $100,000[.00] 

UIM coverage limit [under] both of her Erie Insurance auto 

[insurance] policies, for a[n aggregate] total of 

$200,000[.00], because the "limit of protection" clause in 

her [insurance] policies is unenforceable because it 

impermissibly provides only "gap" coverage rather than the 

"excess" coverage required by the [Motor Vehicle Financial 

Responsibility Law (“MVFRL”), 75 Pa.C.S.A. 

§§ 1701-1799.7,] as interpreted by [our] Supreme Court in 

Generette v. Donegal Mut. Ins. Co.[, 957 A.2d 1180 (Pa. 

2008)]?

[2.] Whether [Appellant] is entitled to collect the $100,000[.00]

UIM coverage limit [under] both of her Erie Insurance auto 

[insurance] policies, for a[n aggregate] total of 

$200,000[.00], because she may "stack" the coverages 

____________________________________________

1 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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because the stacking waivers she executed do not preclude 

inter-policy stacking under the circumstances of this case?

Appellant’s Brief at 4 (extraneous capitalization omitted).

Appellant’s issues challenge a trial court order that granted judgment 

on the pleadings in favor of Erie Insurance and that denied Appellant’s 

cross-motion for judgment on the pleadings. Our standard and scope of 

review when considering an order that disposes of a motion for judgment on 

the pleadings is well-settled.

Entry of judgment on the pleadings is permitted under 

Pennsylvania Rule of Civil Procedure 1034, which provides that 

“after the pleadings are closed, but within such time as not to 

unreasonably delay trial, any party may move for judgment on 

the pleadings.” Pa.R.C[iv].P. 1034(a). A motion for judgment on 

the pleadings is similar to a demurrer. It may be entered when 

there are no disputed issues of fact and the moving party is 

entitled to judgment as a matter of law.

Appellate review of an order granting a motion for judgment on 

the pleadings is plenary. The appellate court will apply the same 

standard employed by the trial court. A trial court must confine 

its consideration to the pleadings and relevant documents. The 

court must accept as true all well[-]pleaded statements of fact, 

admissions, and any documents properly attached to the 

pleadings presented by the party against whom the motion is filed, 

considering only those facts which were specifically admitted.

We will affirm the grant of such a motion only when the moving 

party's right to succeed is certain and the case is so free from 

doubt that the trial would clearly be a fruitless exercise.

Southwestern Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185 

(Pa. Super. 2013), appeal denied, 96 A.3d 1029 (Pa. 2014).

Based on the nature of Appellant’s issues, we will address them simul 

ut unum. Before beginning our review, however, we first examine the terms
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of Appellant’s insurance policies.2 Appellant’s insurance policy number 

Q01 XXXX622 (“the 622 Policy”) lists on its Declaration page coverage for two 

“vehicles,” a 2008 Mazda CX-9 all-wheel-drive motor vehicle and a 2000 

homemade (“HMDE”) trailer. See The 622 Policy Declaration, at 1. The 

Declaration further shows Appellant had UIM coverage on the Mazda motor 

vehicle as follows: “Bodily Injury $100,000[.00] per person / $300,000[.00] 

per accident - Unstacked[.]” Id. at 2. Appellant did not have UIM coverage 

for the HMDE trailer. Id. The 622 Policy defines the term “auto” as:

Any land “motor vehicle” with at least four wheels except a:

1. vehicle designed for use principally off public roads;

2. vehicle operated on rails or crawler treads;

3. vehicle located for use as a residence;

4. “miscellaneous vehicle.”

See The 622 Policy – General Policy Definitions, at 2. The term “motor 

vehicle” is defined as:

any vehicle that is self-propelled and is required to be registered 

under the laws of the state in which “you” [(referring to the 

insured, which in this case is Appellant)] reside at the time this 

policy is issued. “Motor vehicle” does not include a vehicle:

1. Propelled solely by human power;

2. Propelled by electric power obtained from overhead wires;

3. Operated on rails or crawler treads;

____________________________________________

2

In reproducing portions of Appellant’s insurance policies, we have omitted 

some bold-faced text.
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4. Located for use as a residence or premises; or

5. Which is a lawn and garden tractor or mower or similar vehicle.

Id. The term “miscellaneous vehicle” is defined as “a motorcycle (including a 

motorcycle with a sidecar), moped, snowmobile, golf cart, all[-]terrain 

vehicle[,] and any similar recreational vehicle. It does not include a lawn and 

garden tractor or mower or similar vehicle.” Id. The term “trailer” is defined 

as “a vehicle designed to be pulled by a ‘private passenger auto,’ if not being 

used for business purposes except with a ‘private passenger auto.’ In the 

Liability Protection section of this policy, ‘trailer’ includes a farm wagon or farm 

implement while used with a ‘private passenger auto.’” Id. at 3 (extraneous 

capitalization omitted) Finally, a “private passenger auto” is defined as:

a four wheel land “motor vehicle” designed mainly to transport 

people on public roads. It includes station wagons and the 

following types of vehicles, even with dual rear wheels, when not 

used for business purposes, except farming or ranching:

1. Motor homes;

2. Pickups; and

3. Vans.

Id. at 2.

Under the “Limit of Protection” section of the Uninsured/Underinsured 

Motorist Coverage Endorsement, the 622 Policy states, in pertinent part,

Uninsured/Underinsured Motorists Coverage is not provided for 

any “trailer,” whether or not the “trailer” is attached to another 

motor vehicle or “miscellaneous vehicle.” No separate limit of 

protection for Uninsured/Underinsured Motorists Coverage is 

available for a “trailer,” whether attached or unattached to a 

motor vehicle or “miscellaneous vehicle.” . . .
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Stacked Coverage

If Stacked Uninsured Motorists and/or Stacked Underinsured 

Motorists Coverage is purchased and the injured person is "you" 

or a "relative," "we" will pay no more than the applicable sum of 

the Uninsured or Underinsured Motorists Coverage limits shown 

on the "Declarations."

If the injured person is other than "you" or a "relative," "we" will 

pay no more than the applicable Uninsured or Underinsured 

Motorists Coverage limits shown on the "Declarations" for the 

"auto" involved in the accident, regardless of the number of 

persons "we" protect, "autos we insure," premiums paid, claims 

made or "autos" involved in the accident. If none of the "autos" 

are involved in the accident, the highest limit of Uninsured or 

Underinsured Motorists Coverage applicable to any one "auto" will 

apply.

Unstacked Coverage

If Unstacked Uninsured Motorists and/or Unstacked Underinsured 

Motorists Coverage is purchased, "we" will pay no more than the

Uninsured or Underinsured Motorists Coverage limits shown on 

the "Declarations" for the "auto" involved in the accident, 

regardless of the number of persons "we" protect, "autos we 

insure," premiums paid, claims made or "autos" involved in the 

accident. If none of the "autos" are involved in the accident, the 

highest limit of Uninsured or Underinsured Motorists Coverage 

applicable to any one "auto" will apply.

If other similar insurance applies to "autos" not involved in the 

accident, and the insurance provides coverage to "you" or a 

"relative," then recovery will not exceed the highest limit of 

liability for any one "auto" under any one policy providing 

coverage for "you" or a "relative."

See The 622 Policy - Uninsured/Underinsured Motorists Coverage 

Endorsement, at 3-4.

Appellant’s second insurance policy, policy number Q09 XXX1042 (“the 

1042 Policy”), lists only a single motor vehicle, a 2003 Chevy Silverado truck, 

as “autos covered” on the policy’s Declaration page. See The 1042 Policy 
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Declaration, at Item 4. The 1042 Policy states that UIM coverage is provided 

for bodily injury in the amount of $100,000.00 per person and $300,000.00 

per accident “unstacked.” Id. at Item 5. The 1042 Policy includes, inter alia,

a “limits of protection” section in the Uninsured/Underinsured Motorists 

Coverage Endorsement similar to the 622 Policy, as discussed supra, including 

the following language under the “Unstacked Coverage” section,

If other similar insurance applies to autos not involved in the 

accident, and the insurance provides coverage to you or a relative, 

then recovery will not exceed the highest limit of liability for any 

one auto under any one policy providing coverage to you or a 

relative.

See The 1042 Policy – Uninsured/Underinsured Motorists Coverage 

Endorsement, at 4.

Both the 622 Policy and the 1042 Policy contain identical waiver of 

stacking forms, which state:

By signing this waiver, I am rejecting stacked limits of 

underinsured motorist coverage under the policy for myself and 

members of my household under which the limits of coverage 

available would be the sum of limits for each motor vehicle insured 

under the policy. Instead, the limits of coverage that I am 

purchasing shall be reduced to the limits stated in the policy. I 

knowingly and voluntarily reject the stacked limits of coverage. I 

understand that my premiums will be reduced if I reject this 

coverage.

See The 622 Policy – Underinsured Coverage Limits Waiver, 1/18/18; see 

also The 1042 Policy – Underinsured Coverage Limits Waiver, 9/23/20.
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The waiver form for the 622 Policy was electronically signed by Appellant on 

January 18, 2018. The waiver form for the 1042 Policy was executed by 

Appellant on September 23, 2020.

With the pertinent terms of Appellant’s insurance policies in mind, we 

now turn to Appellant’s claims challenging the entry of judgment on the 

pleadings in favor of Erie Insurance. In sum, Appellant asserts that the 622 

Policy waiver form was ineffective in waiving inter-policy stacking and,

therefore, she is entitled to UIM coverage in the aggregate amount of 

$200,000.00 ($100,000.00 per policy). Appellant further maintains that 

payment of stacked UIM coverage is unrestricted by the limit of protection 

clause capping total coverage to “the highest limit of liability for any one ‘auto’ 

under any one policy” since that provision violates the MVFRL and is 

unenforceable. Appellant’s Brief at 11-36. For the reasons discussed below, 

we disagree.

While the purchase of UIM coverage is optional within Pennsylvania, the 

MVFRL requires insurance companies, such as Erie Insurance, to offer such 

coverage to its policyholders. 75 Pa.C.S.A. § 1731(a) (stating, “Mandatory 

offering.--No motor vehicle liability insurance policy shall be delivered or 

issued for delivery in this Commonwealth, with respect to any motor vehicle 

registered or principally garaged in this Commonwealth, unless [UIM] motorist 

coverage[ is] offered therein or supplemental thereto”). The intent of UIM 

coverage is to “provide protection for persons who suffer injury arising out of 

the maintenance or use of a motor vehicle and are legally entitled to recover 
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damages therefor from owners or operators of underinsured motor vehicles.” 

75 Pa.C.S.A. § 1731(c). “UIM coverage is triggered when the tortfeasor’s 

liability coverage is not sufficient to cover the injuries [sustained] in an 

accident.” Generette, 957 A.2d at 1189. Section 1733 sets forth the priority 

of recovery when seeking UIM coverage as follows:

Where multiple policies apply, payment shall be made in the 

following order of priority:

(1) A policy covering a motor vehicle occupied by the injured 

person at the time of the accident.

(2) A policy covering a motor vehicle not involved in the 

accident with respect to which the injured person is an 

insured.

75 Pa.C.S.A. § 1733(a)(1) and (a)(2).

The basic concept of stacking is the ability to add the coverages 

available from different vehicles and/or different policies to 

provide a greater amount of coverage available under any one 

vehicle or policy. Additionally, there are two types of stacking, 

inter-policy and intra-policy.

Intra-policy stacking is when more than one vehicle is insured 

under a single policy of insurance. For example: three cars 

insured under a single policy providing [$15,000.00 per person / 

$30,000.00 per occurrence] UIM benefits. If stacked, an insured 

is entitled to a total of $45,000[.00] in []UIM benefits - three 

vehicles insured at $15,000[.00] each equaling $45,000[.00] in 

total coverage. If unstacked, only $15,000[.00] is available in 

[]UIM coverage.

Inter-policy stacking[] is the addition of coverages for vehicles 

insured under different policies of insurance. For example: the 

same three cars, now separately insured all providing stacked 

[$15,000.00 per person / $30,000.00 per occurrence] UIM 

coverage. [Pursuant to the concept of inter-policy stacking, the]

injured insured may still collect the $45,000[.00] in total 
J-A22002-22

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coverage, the value of each policy being added 

together - $15,000[.00] + $15,000[.00] + $15,000[.00].

McGovern v. Erie Ins. Group, 796 A.2d 343, 344-345 (Pa. Super. 2002) 

(citation omitted), appeal denied, 809 A.2d 904 (Pa. 2002).

Section 1738, which sets forth the concepts of stacking and waiver of 

stacking, states,

§ 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 reflect the different cost 

of such coverage.

(d) Forms. -

. . .

(2) The named insured shall be informed that he may exercise the 

waiver of the stacked limits of underinsured motorist coverage by 

signing the following written rejection form:

UNDERINSURED COVERAGE LIMITS
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By signing this waiver, I am rejecting stacked limits of 

underinsured motorist coverage under the policy for myself 

and members of my household under which the limits of 

coverage available would be the sum of limits for each motor 

vehicle insured under the policy. Instead, the limits of 

coverage that I am purchasing shall be reduced to the limits 

stated in the policy. I knowingly and voluntarily reject the 

stacked limits of coverage. I understand that my premiums 

will be reduced if I reject this coverage.

___________________________

Signature of First Named Insured

___________________________

Date

(e) Signature and date. - The forms described in subsection (d) 

must be signed by the first named insured and dated to be valid. 

Any rejection form that does not comply with this section is void.

75 Pa.C.S.A. § 1738(a) - (e).

In the instant matter, Appellant asserts that because the 622 Policy 

insured “more than one vehicle[,]” she did not knowingly waive inter-policy 

stacking and, as such, she is entitled to “stack” the UIM coverage limits of the 

622 Policy ($100,000.00) and the 1042 Policy ($100,000.00) for an aggregate 

recovery of $200,000.00. Appellant’s Brief at 32-33. Appellant asserts that 

“when [a] policyholder[, such as herself,] purchases a policy that insures more 

than one vehicle[, as she contends is the case with the 622 Policy,] the 

language of the waiver form does not make it clear that the insured is waiving 

stacking for more than one policy, as opposed to simply the [insurance] policy 

on which they have been asked to sign the waiver, so the insured may 

combine, or ‘stack,’ the coverages of both policies.” Id. at 33.
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Our Supreme Court, in Craley v. State Farm Fire and Cas. Co, 895 

A.2d 530 (Pa. 2006), in addressing Section 1738 inter-policy waiver of 

stacking, held that a policyholder knowingly waives inter-policy stacking when

(1) the policyholder executes a waiver form which conforms with Section 

1738(d), and (2) the insurance policy insures only a single vehicle. Craley, 

895 A.2d at 536, 541-542. The Craley Court explained that a policyholder 

cannot reasonably believe that he or she waives only intra-policy stacking to 

receive a reduced premium where an insurance policy covers a single motor 

vehicle. Id. As such, when an insurance policy covers only a single motor 

vehicle, the policyholder knowingly waives inter-policy stacking when 

executing a waiver form that conforms to Section 1738(d). Id. In other 

words, when an insurance policy covers only one motor vehicle, there can be 

no intra-policy stacking (stacking of UIM coverage on two or more motor 

vehicles covered by the same insurance policy) because there is no second 

motor vehicle with UIM benefits covered by that single insurance policy upon 

which to combine, or “stack,” the UIM coverage from the first motor vehicle

with UIM benefits. Therefore, when a policyholder executes a Section 1738(d) 

waiver form for an insurance policy where there is no possibility of intra-policy 

stacking, it logically flows that the policyholder knowingly waives inter-policy 

stacking in exchange for a reduced premium. Id. at 542 (stating, “[a]bsent 

the applicability of intra-policy waiver, the only interpretation fairly available 

to [the policyholder] was that his premium-reducing waiver applied to 
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inter-policy stacking”); see also Erie Ins. Exch. v. Petrie, 242 A.3d 915, 

920 (Pa. Super. 2020).

The Craley Court left unresolved, however, whether a policyholder can 

knowingly waive inter-policy stacking by executing a Section 1738(d) waiver 

form when the insurance policy covers more than one motor vehicle.3 Craley, 

895 A.2d at 542 n.18. The Craley Court explained that where the policyholder 

has two or more insurance policies that each include UIM coverage on more 

than one motor vehicle, the language mandated by the Section 1738(d) 

waiver form – “I am rejecting stacked limits of underinsured motorist 

coverage under the policy for myself and members of my household under 

which the limits of coverage available would be the sum of limits for each 

motor vehicle insured under the policy” – could lead a policyholder to 

reasonably assume “that he[, or she,] received a reduced premium for waiver 

of the stacking of the limits regarding the vehicles insured by [the single 

policy, i.e., intra-policy stacking waiver,] with no knowledge that he[or she,] 

was waiving stacking of the applicable limits of [the multiple policies, i.e., 

inter-policy stacking waiver].” Id. at 542. In other words, according to the 

Craley Court, when a single insurance policy covers two or more motor 

vehicles each having UIM coverage, a policyholder, by executing the Section 

____________________________________________

3

It is well-established that Section 1738 permits waiver of intra-policy 

stacking when the policyholder executes a valid waiver form that conforms to 

Section 1738(d) and the single insurance policy covers two or more motor 

vehicles each providing UIM coverage. Craley, 895 A.2d at 539-540; see 

also 75 Pa.C.S.A. § 1738.
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1738(d) waiver form, knowingly waives intra-policy stacking, but it is unclear 

whether the prescribed waiver form establishes that the policyholder

understood that he or she knowingly waived inter-policy stacking. See id at 

542 n.18 (calling upon the legislature or the insurance commissioner for the 

Commonwealth of Pennsylvania to clarify whether and how insurers may 

secure a valid waiver of inter-policy stacking in such a case).

Several years later, this Court, in Petrie, supra, addressed the 

circumstance whereby a policyholder executed a Section 1738 waiver form for 

an insurance policy that covered two or more motor vehicles each having UIM 

coverage. The Petrie Court held that, in the instance where the insurance 

policy provided UIM coverage for more than one vehicle, the waiver of stacking 

form must “explicitly provide for inter-policy” stacking waiver, and it was 

incumbent upon the insurance company to supplement the Section 1738(d) 

waiver form or “otherwise fulfill its obligation to secure a knowing waiver of 

inter-policy stacking.” Petrie, 242 A.3d at 921. In other words, the execution 

of a Section 1738(d) waiver form pertaining to an insurance policy that 

covered two or more motor vehicles each providing UIM coverage waived only

intra-policy stacking. The waiver form, as prescribed by Section 1738(d), did 

not, in that instance, indicate that the policyholder waived inter-policy 

stacking. To waive inter-policy stacking, the Petrie Court held that the 

Section 1738(d) waiver form must be supplemented with a statement that 

explicitly states the policyholder waives inter-policy stacking.
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Here, the trial court, in granting Erie Insurance’s motion for judgment 

on the pleadings, stated,

[the 622 policy] provided coverage on one motor[ ]vehicle and 

one trailer[.] Thus [the 622 policy] was not a “multi-vehicle” 

policy. Per the terms of [the 622 policy], UIM coverage was 

applicable to the motor[ ]vehicle only. Thus, the stacking waivers 

executed on both of [Appellant’s] policies effectively waived 

stacking of the UIM coverage.

Trial Court Opinion, 3/7/22, at 3.

As discussed supra, the 622 Policy provided insurance coverage on a 

motor vehicle (2008 Mazda CX-9) and a homemade trailer.4 In particular, the 

622 Policy provided UIM coverage on only the motor vehicle, and the “Limit 

of Protection” section of the Uninsured/Underinsured Motorist Coverage 

____________________________________________

4 Section 1702 of the MVFRL does not define the terms “vehicle,” “motor 

vehicle,” or “trailer.” 75 Pa.C.S.A. § 1702. Section 102 of the Vehicle Code, 

however, defines “motor vehicle” as “a vehicle which is self-propelled” and 

defines “trailer” as “a vehicle designed to be towed by a motor vehicle.” 75 

Pa.C.S.A. § 102. Thus, we find the Section 102 definitions of the Vehicle Code

appliable to the MVFRL because the MVFRL does not provide definitions of 

these terms.

Under these Section 102 definitions, it is apparent that the term “vehicle” 

includes both a “motor vehicle” and a “trailer” but the terms “motor vehicle” 

and “trailer” are mutually exclusive as a “motor vehicle” is self-propelled and 

a “trailer” must be towed and, therefore, is not self-propelled.

In the instant case, the definitions of “motor vehicle” and “trailer” contained 

within Appellant’s insurance policies track the definitions offered by Section 

102 of the Vehicle Code. Therefore, while Appellant’s 2008 Mazda CX-9 and 

trailer both qualify as a “vehicle,” the 2008 Mazda CX-9 also qualifies as a 

“motor vehicle” while the homemade trailer qualifies only as a “trailer.” 

Consequently, we shall refer to the two “vehicles” as a “motor vehicle” and 

“trailer,” respectively.
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Endorsement explicitly stated that “[UIM coverage] is not provided for any 

‘trailer’ whether or not the ‘trailer’ is attached to another motor vehicle or 

‘miscellaneous vehicle.’”

5

 Applying the definitions included within the relevant 

statutory provisions and the insurance policies at issue in this case, we 

conclude that Appellant understood she paid a premium for insurance 

coverage that included UIM benefits on only one motor vehicle.

The waiver form executed by Appellant conformed with the 

requirements of Section 1738(d). Although Erie Insurance did not supplement 

the waiver form by including language explicitly waiving inter-policy stacking, 

Appellant waived inter-policy stacking under the circumstances of the case 

sub judice because the 622 Policy provided UIM coverage on a single motor 

vehicle. The 622 Policy did not provide UIM coverage on multiple motor 

vehicles and, thus, was not a “multi-motor vehicle” insurance policy. 

Therefore, under the facts of this case, the Section 1738(d) waiver of stacking 

form could not be understood by a policyholder to waive intra-policy stacking

since multiple motor vehicles capable of allowing stacking of UIM coverage

were not covered under the 622 Policy. As such, when Appellant executed 

____________________________________________

5 The exclusion of the trailer from UIM coverage is permitted by Section 1731 

of the MVFRL, which states, in pertinent part, that “no motor vehicle liability 

insurance policy shall be delivered or issued for delivery in this 

Commonwealth, with respect to any motor vehicle registered or principally 

garaged in this Commonwealth, unless [UIM coverage is] offered therein or 

supplemental thereto[.]” 75 Pa.C.S.A. § 1731(a) (emphasis added). Thus 

Section 1731(a) does not require UIM coverage to be offered on a trailer 

because a trailer does not qualify as a motor vehicle, as discussed supra.
J-A22002-22

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the Section 1738(d) waiver form in the case sub judice, Appellant knowingly 

waived inter-policy stacking in exchange for her reduced premiums, since 

intra-policy stacking was not an option.

In addition, Appellant waived inter-policy stacking on the 1042 Policy 

because (1) the insurance policy covered only a single motor vehicle, and (2) 

the waiver form conformed with Section 1738(d). Craley, 895 A.2d at 536, 

541-542. Similarly, Appellant waived inter-policy stacking on the 622 Policy 

because (1) the policy covered only a single motor vehicle, and (2) the waiver 

form conformed with Section 1738(d). Id. Therefore, we concur with the 

trial court, and the record supports, that Appellant waived stacking under both 

of her insurance policies.

Appellant also challenges the trial court’s order granting declaratory 

judgment in favor of Appellant in the amount of $100,000.00 on the ground 

that the limit of protection clause in her insurance policies violates the MVFRL 

and, as such, is unenforceable as a means of limiting her UIM coverage to 

$100,000.00. Appellant’s Brief at 11-24. Appellant asserts that the limit of 

protection clause violates the MVFRL because the clause converts her UIM 

coverage into “gap” coverage rather than “excess” coverage, as required by 

the MVFRL. Id. at 14.

It is well-established that the definition of “underinsured motor 

vehicle” – [a] motor vehicle for which the limits of available liability insurance 

and self-insurance are insufficient to pay losses and damages – requires 

“excess” UIM coverage and not “gap” UIM coverage. Allwein v. Donegal 
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Mut. Ins. Co., 671 A.2d 744, 747-750 (Pa. Super. 1996), appeal denied, 685 

A.2d 541 (Pa. 1996); see also Generette, 957 A.2d at 1191 (agreeing that, 

“the MVFRL’s definition of an underinsured motorist requires the provision of 

excess rather than gap [UIM] coverage because the definition is framed in 

terms of the total of the [injured insured’s] losses rather than the [injured

insured’s] own insurance coverage limits”); 75 Pa.C.S.A. § 1702 (defining 

“underinsured motor vehicle”). Our Supreme Court in Generette, supra, 

explained the concepts of “excess” UIM coverage and “gap” UIM coverage as 

follows:

[“Excess”] UIM coverage[] aims to maximize the potential for full 

compensation to the injured insured. Thus, excess UIM 

[coverage] gives to the injured insured a fund that supplements 

the fund provided by the tortfeasor's liability coverage, up to the 

injured insured's UIM policy limits or until he[, or she,] is 

compensated for his[, or her,] losses. [“Gap”] UIM coverage[]

aims to place the injured insured in the same position he[, or she,]

would have occupied had the tortfeasor carried liability coverage 

in an amount that matches the injured insured's UIM coverage. 

Thus, gap UIM coverage gives to the injured insured a fund that 

fills in any gap between the tortfeasor's liability coverage and the 

injured insured's UIM policy limit. [By way of an example 

illustrating the distinction between excess and gap UIM coverages, 

s]uppose that an injured insured is legally entitled to damages of 

$100,000[.00 and] that the tortfeasor's liability insurance is 

$20,000[.00] and that the injured insured's UIM coverage limit is 

$50,000[.00]. Under excess UIM coverage, the injured insured's 

total recovery is $70,000[.00], with UIM coverage of $50,000[.00]

being paid in addition to the amount the [injured] insured receives 

under [the tortfeasor’s] liability coverage, $20,000[.00]. Under 

gap UIM coverage, the injured insured's total recovery is 

$50,000[.00], with the first $20,000[.00] coming from the 

tortfeasor's liability coverage and the remaining $30,000[.00], 

coming from the injured insured's UIM coverage, to fill in the gap 

between the tortfeasor's liability coverage and the injured 

insured's UIM coverage.
J-A22002-22

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Generette, 957 A.2d at 1186 n.12, citing Pennsylvania Nat’l Mut. Cas. Co. 

v. Black, 916 A.2d 569, 583 (Pa. 2007) (Cappy, C.J. dissenting).

An injured insured may seek UIM coverage for his or her expenses 

related to injuries or damages caused by a third-party tortfeasor when the 

injured insured’s expenses exceed a third-party tortfeasor’s insurance 

coverage for such losses. Section 1733 sets forth the priority for recovery of 

UIM benefits as follows:

§ 1733. Priority of recovery

(a) General rule. - Where multiple policies apply, payment shall 

be made in the following order of priority:

(1) A policy covering a motor vehicle occupied by the injured 

person at the time of the accident.

(2) A policy covering a motor vehicle not involved in the 

accident with respect to which the injured person is an 

insured.

(b) Multiple sources of equal priority. - The insurer against 

whom a claim is asserted first under the priorities set forth in 

subsection (a) shall process and pay the claim as if wholly 

responsible. The insurer is thereafter entitled to recover 

contribution pro rata from any other insurer for the benefits paid 

and the costs of processing the claim.

75 Pa.C.S.A. § 1733(a) and (b). UIM coverage under a policy covering a 

motor vehicle occupied by the injured party at the time of the accident is 

commonly referred to as “first priority UIM coverage.” See 75 Pa.C.S.A. 

§ 1733(a)(1). Correspondingly, UIM coverage under a policy covering a motor 

vehicle not involved in the accident to which the injured party qualifies as an 
J-A22002-22

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insured is commonly referred to a “second priority UIM coverage.” See 75 

Pa.C.S.A. § 1733(a)(2).

With an understanding of prioritization of recovery, we turn to our 

Supreme Court’s decision in Generette, supra, in which Generette was a 

third-party guest in a motor vehicle when it was struck by another motor 

vehicle driven by a tortfeasor. Generette, 957 A.2d at 1182. Generette 

recovered for her damages first from the tortfeasor’s insurance policy and 

then under a first priority UIM coverage policy that insured the motor vehicle 

she occupied at the time of the accident. Id. Because her damages exceeded 

the amount she recovered from both the tortfeasor’s insurance policy and the 

first priority UIM coverage policy, Generette sought recovery under her own 

insurance policy, which insured a single motor vehicle to which she waived 

stacking of UIM coverage. Id. at 1182-1183 and n.3. Generette’s insurance 

policy, in this instance, provided second priority UIM coverage because the 

insurance policy insured a motor vehicle that was not involved in the accident 

with the tortfeasor and Generette was an insured under the policy. 75 

Pa.C.S.A. § 1733(a)(2). Generette’s second priority UIM coverage policy 

contained a limit of protection clause that reduced the amount of second 

priority UIM coverage by the amount she received from the first priority UIM 

coverage policy. Generette, 957 A.2d at 1183 n4. The Generette Court 

concluded that a limit of protection clause that reduced second priority UIM 

coverage by the amount recovered under the first priority UIM coverage policy 

created gap, rather than excess, coverage in violation of the MVFRL excess 
J-A22002-22

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coverage requirement. Id. at 1192. In so holding, the Generette Court 

expanded the definition of “excess coverage,” as set forth in Allwein, supra, 

by requiring that second priority UIM coverage be in excess of both the 

tortfeasor’s liability coverage, as well as first priority UIM coverage, rather 

than simply requiring that the aggregate, available UIM coverage be in excess 

of the tortfeasor’s liability coverage. See id.; see also Allwein, 671 A.2d at 

747-750.

The Generette holding, however, is distinguishable from the case sub 

judice. Generette, supra, involved a limit of protection clause that violated 

the MVFRL’s excess coverage requirement because the limiting clause reduced

the amount of second priority UIM coverage by the amount of first priority 

UIM coverage received. The case sub judice involves whether the limit of 

protection clause found in both of Appellant’s insurance policies (which under 

the circumstances presented here are two second priority UIM coverage 

polices) can limit the amount of second priority UIM benefits Appellant 

recovers to the highest amount of coverage provided by any single second 

priority UIM coverage policy where Appellant effectively waived inter-policy 

stacking.

Recently, our Supreme Court in Donovan v. State Farm Mut. Auto. 

Ins. Co., 256 A.3d 1145 (Pa. 2021) addressed a situation where Donavan, 

while operating his motorcycle, was struck by a tortfeasor’s motor vehicle. 

Donovan, 256 A.3d at 1147. Donovan first recovered for his damages under

the tortfeasor’s insurance policy and then under his own insurance policy that
J-A22002-22

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insured his motorcycle, i.e., first priority UIM coverage. Id. Donavan then 

sought to recover under his mother’s insurance policy where he qualified as

an “insured” because he was a resident relative.

6

 Id. Donavan’s mother 

signed a Section 1738(d) waiver form, but the Donovan Court determined 

that she did not knowingly waive inter-policy stacking. Id. at 1147, 1157, 

relying on Craley, supra.

The mother’s insurance policy also included a “coordination of benefits” 

provision applicable upon a waiver of stacking, similar to the limit of protection 

clause in the case sub judice. Id. at 1160-1161. The coordination of benefits 

provision set the maximum recovery paid from all polices combined as the 

single highest appliable UIM coverage limit provided by any one insurance 

policy.7 Id. The Donovan Court stated that such a coordination of benefits 

provision “implemented” a valid “waiver of inter-policy UIM stacking as it 

dictate[d] that the combined coverage is limited by the highest limit of any 

single policy rather than providing for the addition of coverage.” Id. at 

1160-1161. Because Donovan’s mother did not validly waive inter-policy 

____________________________________________

6 Donovan’s mother’s insurance policy covered three motor vehicles but did 

not cover Donovan’s motorcycle. Donovan, 256 A.3d at 1147.

7 The coordination of benefits provision that applied to unstacked UIM 

coverage in Donovan, supra, stated, “the maximum amount that may be 

paid from all such polices [(referring to policies underwritten by State Farm 

Insurance companies that provided for UIM coverage to Donavan as an 

insured)] combined is the single highest applicable limit provided by any one 

of the policies. We may choose one or more policies from which to make 

payment.” Donovan, 256 A.3d at 1148.
J-A22002-22

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stacking via a Section 1738(d) waiver form, however, the Donovan Court 

held that the coordination of benefits provision applicable to an unstacked 

policy could not “operate as a de facto waiver of inter-policy stacking.” 

Donovan, 256 A.3d at 1161. In other words, an insurance carrier cannot rely 

on such a coordination of benefits provision to effectively assert waiver of 

inter-policy stacking. Inter-policy stacking can only be waived when the 

policyholder knowingly waives inter-policy stacking by executing a Section 

1738(d) waiver form and the insurance policy covers only one motor vehicle 

with UIM coverage, or when the policyholder executes a supplemental 

statement, in conjunction with a Section 1738(d) waiver form, that explicitly 

waives inter-policy stacking when the insurance policy covers two or more 

motor vehicles with UIM coverage.

The Donovan Court further held that the coordination of benefits 

provision did not prevent Donovan’s recovery under the second priority 

coverage policy because the provision was only appliable upon waiver of 

stacking and, in Donovan’s case, inter-policy stacking (i.e., the stacking of the 

mother’s UIM coverage on top of the UIM coverage provided by Donovan’s 

policy) had not been validly waived. Id. In reaching its holding, the Donovan

Court declined to address whether the coordination of benefits provision 

violated “the MVFRL’s provision for excess rather than gap [UIM] coverage” 

because the issue “was not encompassed in the issues granted review.” Id.

at 1161 n.23. Thus, the issue raised in the case sub judice – whether a limit 

of protection clause capping second priority UIM coverage to the highest limit 
J-A22002-22

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of liability of any single second priority UIM coverage policy violates the 

MVFRL’s excess coverage requirement – remains unresolved and, thus, 

presents an issue of first impression for this Court.

8

We are mindful that when interpreting insurance policies, “we must 

apply general principles of contract interpretation, as, at base, an insurance 

policy is nothing more than a contract between an insurer and an insured.” 

Gallagher v. Geico Indem. Co., 201 A.3d 131, 137 (Pa. 2019).

In so doing, we must ascertain the intent of the parties as 

manifested by the terms used in the written insurance policy. Just 

as in statutory construction, when the language of the policy is 

clear and unambiguous, a court is required to give effect to that 

language. Importantly, however, provisions of insurance 

contracts are invalid and unenforceable if they conflict with 

statutory mandates because contracts cannot alter existing laws.

Id. (citations, quotation marks, and brackets omitted); see also Allwein, 

671 A.2d at 752 (stating, “[a]s a general rule, stipulations in a contract of 

insurance in conflict with, or repugnant to, statutory provisions which are 

applicable to, and consequently form a part of, the contract, must yield to the 

____________________________________________

8 We are cognizant that this issue was addressed recently by the Federal 

District Court for the Eastern District of Pennsylvania in Meyers v. Travelers 

Ins. Co., ___ F.Supp.3d ___, 2022 WL 1028705 (E.D. Pa. filed Apr. 6, 2022)

(slip copy). Although this Court is not bound by the decisions of federal district 

courts, we find persuasive the rationale set forth in Meyers, supra. See 

Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 36 (Pa. Super. 

2015) (stating, “[a]lthough we are not bound by the holdings of federal district 

courts, [this Court] may utilize the reasoning in these decisions to the extent 

we find them persuasive”).
J-A22002-22

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statute, and are invalid, since contracts cannot change existing statutory 

laws”).

To reiterate, the MVFRL requires excess UIM coverage. As the Allwein

Court noted, excess UIM coverage is “limited only by the [injured insured’s] 

damages or the policy limits, whichever is smaller.” Allwein, 671 A.2d at 

747. In enacting the MVFRL, the Legislature intended to reduce consumer 

costs of motor vehicle insurance while affording an injured party “the greatest 

possible coverage” for damages sustained. Id. at 750. In construing the 

MVFRL and contractual provisions of an insurance policy that are not in 

contravention of the statute, we are mindful that the insured is entitled to 

receive the maximum benefits for which he or she has paid premiums, and 

the insurer is required to provide coverage to the extent the insured 

contractually agreed to and paid for such coverage under the terms of the 

insurance policy. See Craley, 895 A.2d at 542; see also Generette, 201 

A.3d at 138 (stating, “[o]ne of the insurance industries’ age-old rubrics . . . is 

that an insured should receive the coverage for which he[, or she,] has paid”).

As discussed supra, Section 1733(a) sets forth the order of priority by

which an injured insured may seek UIM benefits. As caselaw has held, an 

insurance policy limit of protection clause may not reduce first priority UIM 

coverage by the amount received from the tortfeasor’s insurance policy. 

Allwein, 61 A.2d at 746, 758. Similarly, an insurance policy limit of protection 

clause may not reduce second priority UIM coverage by the amount received 

from either the tortfeasor’s insurance policy or the first priority UIM coverage 
J-A22002-22

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policy, or a combination of both. Generette, 957 A.2d at 1191-1192. Neither 

Allwein, supra, nor Generette, supra, are on all fours with the case sub 

judice, which asks whether a limit of protection clause may reduce or limit the 

amount of second priority UIM coverage when more than one second priority 

UIM coverage policy is applicable. For the following reasons, we find that, 

under the circumstances of the case sub judice, such a limit of protection 

clause does not violate the MVFRL’s excess coverage requirement when 

stacking has knowingly and effectively been waived. See Meyers, supra.

First, we note that Section 1733 is silent on whether limitations may be 

placed on the total recovery received from policies of equal priority when 

stacking has been waived. See 75 Pa.C.S.A. § 1733. Section 1733 is also 

silent on the distinction between stacked and unstacked UIM coverage. Id. 

Rather, Section 1733 simply sets forth the prioritization for recovery of UIM

benefits. Therefore, we turn to Section 1738 which deals specifically with the 

concepts of stacked and unstacked UIM coverage.

Because the case sub judice deals with a situation in which there has 

been a valid waiver of inter-policy stacking, we examine Section 1738(b), 

which deals with unstacked UIM coverage. Section 1738(b) states that when 

an injured insured waives stacking of UIM coverage, “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.” 75 Pa.C.S.A. 

§ 1738(b) (emphasis added). As directed by Section 1738(b), when 

determining the limits of UIM coverage of a policy in which stacking has been 
J-A22002-22

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waived, we must examine the “stated limits” contained within the insurance 

policy, including the stated coverage found on the Declaration page, as well 

as any limit of protection clauses found within the insurance policy. In the 

case sub judice, the insurance policies include limit of protection clauses

appliable when stacking has been waived as follows:

If other similar insurance applies to “autos” not involved in the 

accident [(i.e., second priority UIM coverage polices pursuant to 

Section 1733(a)(2))], and the insurance provides coverage to 

“you” or a “relative,” then recovery will not exceed the highest 

limit of liability for any one “auto” under any one policy providing 

coverage for “you” or a “relative.”

See The 622 Policy - Uninsured/Underinsured Motorists Coverage 

Endorsement, at 4; see also The 1042 Policy – Uninsured/Underinsured 

Motorists Coverage Endorsement, at 4.

A plain reading of these limit of protection clauses caps the UIM 

coverage provided by one or more second priority UIM coverage policies to 

the “highest limit of liability” for any one motor vehicle insured under any one 

second priority UIM coverage policy. In other words, the coverage limits of 

all second priority UIM coverage policies cannot be aggregated or “stacked” 

one upon the other, which is precisely how the concept of unstacked UIM 

coverage operates. To hold otherwise would permit a policyholder to waive 

stacking to receive a reduced premium and then permit stacking or 

aggregation of second priority UIM coverage. Thus, under the circumstances 

of the case sub judice, a limit of protection clause that caps second priority 

UIM coverage to the highest limit of liability of any single motor vehicle insured 
J-A22002-22

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under any one second priority UIM coverage policy merely implements the 

concept of waiver of stacking and does not create gap coverage in 

contravention of the MVFRL.9

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/28/2022

____________________________________________

9 We find support for our decision that such a limit of protection clause does 

not violate the MVFRL’s requirement of excess coverage in Justice Wecht’s 

dissent in Gallaher, supra, where he stated,

Section 1738 governs an insured's binary choice to accept or 

reject stacking. It says nothing at all about insurance policy 

exclusions that limit, as a threshold matter, the scope of []UIM 

coverage. If the General Assembly had intended - either in 

Section 1738 or elsewhere - to bar insurance policy exclusions 

that limit the scope of []UIM coverage, it could (and presumably 

would) have done so explicitly. Indeed, the General Assembly did 

just that when it wished to prohibit other kinds of exclusions. See, 

e.g., 75 Pa.C.S.[A.] § 1724(b) ([stating,] “[p]rovisions of an 

insurance policy which exclude insurance benefits if the insured 

causes a vehicular accident while under the influence of drugs or 

intoxicating beverages at the time of the accident are void[”]).

Gallagher, 201 A.3d at 142-143 (Wecht, J. dissenting).