March 6, 2019

The Supreme Court of Pennsylvania has amended Pa. R.A.P. 126 to provide that unpublished “non-precedential” opinions issued by the Superior Court of Pennsylvania after May 1, 2019 (thus, unpublished non-precedential opinions issued on and after May 2, 2019) may be cited for their persuasive value.  The amendment ends, prospectively from May 2, 2019, the Superior Court’s current Internal Operating Procedure ban on citation of its unpublished opinions, 210 Pa. Code § 65.37.A (“An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding”), and codifies the Commonwealth Court’s practice, which permits citation to unpublished opinions issued after January 15, 2008. Pa. R.A.P. 3716; 210 Pa. Code § 69.414.  The Rule as amended retains the practice adopted by both the Superior Court and the Commonwealth Court that even if an unpublished opinion remains not citable (because it was issued before May 2, 2019 or January 16, 2008, respectively), it still may be cited if relevant to the law of the case, res judicata or collateral estoppel, or to a criminal proceeding relating to the same defendant. The Supreme Court of Pennsylvania has always published all of its decisions, and thus never has prohibited citation to any of its opinions.

Pennsylvania’s rule change allowing citation for persuasive purposes reflects the federal appellate courts’ 2006 decision to permit citation of unpublished opinions, and a similar recent trend in state appellate courts. See Appellate Opinions – Publish or Perish? Probably.

As is common for other appellate courts, the vast majority of Pennsylvania Superior Court opinions – 94% in 2016 – are unpublished non-precedential opinions. “Unpublished” appellate opinions are a relatively recent phenomenon.  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  Beginning in the 1970s, however, the federal circuit courts of appeals began designating many of their opinions as not for publication, and not citable for any purpose. Although some circuits published more decisions than others, by 2006 the “unpublished” opinion average for all of the federal circuits was 84% of all opinions issued.   Most state appellate courts adopted the practice of designating a large number of their opinions as “unpublished” during this time period as well.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.  The Commonwealth Court’s percentage of unpublished opinions has been lower, but still was approximately 77% in 2000, dropping to approximately 70% in 2016.  

Opponents of citation to unpublished opinions for persuasive purposes have long argued that allowing citation favors 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 zealous advocates attempting to do comprehensive 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 readily available and easily searchable, there has been a push to reverse the no-citation rule.

Rule 126 as amended requires that an advocate citing an unpublished opinion must include as a parenthetical with the citation an indication of “the value or basis” of the citation.  In permitting citation for “persuasive” value, the Court plainly expects an explanation of why the unpublished opinion ought to influence the outcome.

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.