September 13, 2017

By: Kevin McKeon

A rude discovery awaits first-time appellate advocates in Pennsylvania:  Win or lose, the chances are that the Superior or Commonwealth Court opinion that decides their case will not be published (the Supreme Court of Pennsylvania publishes all of its opinions).  If the opinion is not published, it will not be citable at all if from the Superior Court, and will be citable only as persuasive authority if from the Commonwealth Court.  The result is that, barring unusual circumstances, if an opinion is not “published” – that is, so designated by the court and then assigned a volume and page number in online and hard copy versions of West’s Atlantic Reporter – it is destined for extinction.

The phenomenon of non-publication raises many questions.  How did we get here? Do other state courts and the federal courts follow the same practice?  What is the ratio of published to unpublished? Who decides whether to publish or not? What criteria are used? What are the consequences of an “unpublished” designation?  Is there any recourse when an opinion is designated as unpublished? Are there trends in other jurisdictions that could take hold in Pennsylvania?

The answers may surprise you.  Most state and federal appellate courts have maintained “official” reports of decisions that date to the founding of the court, and West’s parallel unofficial reporting system has been in place since the late nineteenth century. Until the early 1970s, most appellate courts reported most of their opinions, and the opinions were available in either the court’s official reporter, or West, or both.  Beginning in the 1970s, however, the federal circuit courts of appeals began issuing many of their opinions designated as not for publication, and, although some circuits published more decisions than others, by 2006 the “unpublished” opinion average for all of the federal circuits was 84% of all opinions issued.   Most state appellate courts adopted the practice of designating a large number of their opinions as “unpublished” during this time period as well.  In Pennsylvania, approximately 87% of the Superior Court’s opinions were unpublished in 2000, and that number rose to 94% by 2016.  The Commonwealth Court’s percentage of unpublished opinions has been lower, but still was approximately 77% in 2000, dropping to approximately 70% in 2016.  The takeaway is that it is much more likely than not that the opinion that resolves your case will not be a reported opinion.

Most appellate courts leave it to the opinion writing judge and his or her fellow panel members to decide whether an opinion will be designated as “unpublished” or “unreported,” and Pennsylvania is no different.  In general, the rationale for not publishing is that the opinion merely applies settled law to unremarkable facts, so that the opinion provides little or no incremental value beyond an explanation of its rationale for the benefit of the litigants and their counsel. Superior Court encourages parties who desire publication to make the request before the opinion is written, in their appellate briefs, and suggests as reasons for publication “that the Court of Common Pleas has decided a question of substance not previously determined by the Superior Court or the Supreme Court” or “has rendered a decision in conflict with the decision of another Court of Common Pleas on the same question” or “the question involves an issue of substantial public importance.”  Pa. R.A.P 3519.  Commonwealth Court’s internal operating procedure on the topic focuses on its opinion once issued but identifies similar factors, including that the opinion: establishes a new rule of law; applies an existing rule of law to facts significantly different than those stated in prior decisions; modifies or criticizes an existing rule of law; resolves an apparent conflict of authority; addresses a legal issue of continuing public interest; or makes a significant, non-duplicative contribution to law because it contains an historical review of the law, a review of legislative history, or a review of conflicting decisions among the courts of other jurisdictions. 210 Pa. Code § 69.412.  Application of the factors, especially in close cases, appears to be more art than science.

The traditional consequences of designating an opinion “unpublished” have been that the opinion is not treated as precedential and may not be cited for any purpose (other than application involving the particular case in which it was issued, such as for arguments involving law of the case or res judicata).  The prohibition against citation to unpublished opinions has always had its critics, but the drumbeat favoring citation has gotten more persistent over the past two decades, as technology has overtaken many of the traditional arguments for prohibiting citation.  Opponents of citation have long argued, for example, that allowing citation will favor lawyers who specialize in particular niches over generalists who lack ready access to unpublished opinions, and that the sheer volume of unpublished opinions would overwhelm anyone attempting to do legal research.  As courts have begun to post both “published” and “unpublished” decisions on their websites, however, and both free and fee online legal research databases have begun to make unpublished decisions available and easily searchable, there has been a push to reverse the no-citation rule. In 2006 Federal Rule of Appellate Procedure 32.1 prospectively ended the citation bans in the federal circuit courts. The Commonwealth Court prospectively ended its ban on citation to unreported opinions in 2009.  The trend among appellate courts in other states since 2000 has also been to permit citation to unpublished opinions.  Pennsylvania’s Superior Court continues its prohibition, although earlier this year the Appellate Court Procedural Rules Committee sought comments on a proposal “to permit citation to unpublished memorandum decisions of Pennsylvania’s appellate courts for persuasive value only,” and explained that if adopted by the Supreme Court, “the proposal would change the current practice in the Superior Court that prohibits citation to unpublished memorandum decisions.” 47 Pa.B. 7 (January 7, 2017).

Allowing citation to unreported opinions, of course, does not mean that the opinions will be treated as precedential. The D.C. Circuit, for example, in implementing FRAP 32.1 (which required the federal circuit courts to allow citation to unpublished opinions) advises as follows:  “While unpublished dispositions may be cited to the court in accordance with FRAP 32.1 and Circuit Rule 32.1(b)(1), a panel’s decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition.”  Similarly, the Commonwealth Court’s rule permitting citation to unpublished opinions advises: “An unreported panel decision of this Court issued after January 15, 2008, may be cited for its persuasive value, but not as binding precedent.” Pa. R.A.P. 3716(b).

So, what should you do if the Superior Court or Commonwealth Court opinion that resolves your case is issued as “unreported” or “unpublished”?  Consider asking the court to publish it, if you can support the request, using reasons based on the criteria discussed above.  Both courts have internal operating procedures that permit the request. See 210 Pa. Code § 65.37.B. (Superior Court) (“After an unpublished memorandum decision has been filed, the panel may sua sponte, or on the motion of any party to the appeal, or on request by the trial judge, convert the memorandum to a published opinion. In the case of a motion of any party to the appeal or a request from the trial judge, such motion or request must be filed with the Prothonotary within 14 days after the entry of judgment or other order involved. The decision to publish is solely within the discretion of the panel.”); § 69.416 (Commonwealth Court) (“After an opinion has been filed as unreported, the court, at any time on its own motion or on the motion of any person, may order the opinion to be reported. Motions to report unreported opinions shall be filed within 30 days after the filing of the opinion, and, except as otherwise provided in § 69.412(c)[ Opinions of a single judge or a special court en banc or panel in election law matters, original and appellate jurisdiction], may be granted by majority vote of the commissioned judges). Note that both courts impose narrow time limits on requests, and that the Superior Court limits requests to “any party” whereas the Commonwealth Court entertains requests from “any person.”

Even where citation for persuasive purposes is permitted, appellate opinions that are designated “unreported” or “unpublished” – that is, the vast majority of appellate opinions – typically slip off the radar into oblivion.


About the Author:

Kevin McKeon, partner at Hawke, McKeon & Sniscak, LLP, represents a diverse array of clients before Pennsylvania state agencies, and state and federal appellate courts. A co-author of West’s Pennsylvania Appellate Practice and immediate past chair of the Pennsylvania Appellate Court Procedural Rules Committee, Kevin uses his comprehensive knowledge of Pennsylvania appellate procedural rules to guide clients through complex appellate proceedings.