Tuesday, March 5, 2019

Welcome News Regarding Citation to Unpublished Decisions Marked As Non-Precedential By Pennsylvania Superior Court

Pursuant to amendments to Pa.R.A.P. 126, effective May 1, 2019 and going forward, judges and litigators will be permitted to cite to all Pennsylvania Superior Court memorandum opinions as persuasive precedent on the issues presented. 

As the amendments to Pa.R.A.P. 126 are not retroactive, previous memoranda opinions issued by the Pennsylvania Superior Court still cannot be cited as precedential. 

As such it is important to remember to look at the date of any unpublished Superior Court opinions and to make sure that the date of the opinion is on or after May 1, 2019 in order to determine if it can be cited as a supporting legal authority.

The Rule provides that, if such an unpublished, non-precedential decision is cited, the litigator “shall” include a parenthetical immediately following the citation indicating the value of the decision, i.e., that it was an unpublished decision that was marked non-precedential.  See Pa.R.A.P. 126(a).

The exact language for that parenthetical was not provided in the amended Rule but elsewhere in the Rule it is indicated that non-precedential decisions “may be cited for their persuasive value.”  See Pa.R.A.P. 126(b)(2).

The Rule also mandates that litigators “shall” attach to the filing a copy of any unpublished, non-precedential decisions cited within the filing.  Pa.R.A.P. 126(a).

Under the Commentary to the Rule, it is indicated that litigators are encouraged to also cite to the Westlaw and/or Lexis citation for any unpublished opinions that are cited. 

The Commentary additionally notes that opinions of the appellate courts are all posted online at http://www.pacourts.us.   That website has search and filtering options to utilize in searching for relevant decisions of the appellate courts.

Commonwealth Court rules regarding citation to its unpublished opinions, which has been allowed by that court since as far back as 2008, were also formally adopted in these amendments and were not changed in any way.

The Commentary to the amended Pa.R.A.P. 126 also offers some interesting points.

For example, the Commentary confirms that litigators and courts need only to cite to the national reporters and that parallel citations to local reporters are not required.  That is, litigators need only to list the A., A.2d or A.3d citations and not the parallel Pa. or Pa. Super. citations as well.

Also, the Commentary notes that litigators are encouraged to cite to the specific pages in any decisions cited that are relevant to the legal point put forth.

Anyone wishing to review the amended Pa.R.A.P. 126 may click this LINK.

I send thanks to Attorney Jim Beck of the Philadelphia office of the Reed Smith law firm for bringing this notable development to my attention. 

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