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Citing Unreported Opinions: Worth the Trouble?

Effective in 2011 unreported opinions of Pennsylvania’s Commonwealth Court may be cited as persuasive authority, though not as binding precedent.

The procedural change follows years of debate about the role of unreported opinions and strikes a compromise between an outright prohibition on citing unreported opinions, at one extreme, and allowing unreported opinions to be cited as precedent, at the other. The previous rule at the Commonwealth Court had been that unreported opinions could be cited only to show a preclusive effect involving a particular case or party under the doctrines of law of the case, res judicata or collateral estoppel. The Pennsylvania Superior Court continues to take the more restrictive approach.

By far the majority of opinions issued by Pennsylvania’s intermediate appellate courts are not reported. Based on 2009 statistics for the Commonwealth Court, approximately 75% of opinions are unreported. In the Superior Court, the number is closer to 95%.

At present, the unreported opinions of the Commonwealth Court and the Superior Court are available on the courts’ websites, and thus could be collected and reported in legal research databases. For the most part, however, they are not. As a consequence, it is difficult for counsel to research unreported opinions. Although publicly available, in most cases they are known only to those who are aware of a particular case already, or to those who make a practice of collecting and reviewing unreported opinions from the courts’ websites.

If at some time in the future a searchable database of unreported opinions is available, counsel will need to decide whether searching such a database is worth the time and expense. No lawyer would want to miss the opportunity to cite a favorable unreported opinion that is directly on point either legally or factually. But the likelihood of such an appeal-making deus ex machina is not high. And what about adverse unreported precedent? If it exists and you find it, are you under a duty to cite it? And if 75% of the Commonwealth Court’s opinions are unreported, does any lawyer really want to quadruple the research time associated with a given issue?

For the immediate future, at least, these dilemmas can be deferred. The court’s new rule will allow a lawyer already familiar with an unreported case to cite the case to the extent it is favorable, thereby eliminating the erstwhile annoying prohibition against citing to an unreported decision (often one in which you or a colleague were counsel) that you think could influence the court in a later case.

The full text of the Commonwealth Court’s newly revised IOP is as follows:

§ 67.55. Citing Judicial Opinions.
An unreported opinion of this court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an unreported panel decision of this court issued after January 15, 2008 for its persuasive value, but not as binding precedent. A single-judge opinion of this court, even if reported, shall be cited only for its persuasive value, not as a binding precedent.

The Superior Court’s policy, posted on its website, is as follows:

The Superior Court of Pennsylvania, commencing with cases heard or submitted during the March 1979 session, adopted a practice whereby some cases are affirmed per curiam, without a published opinion. However, a memorandum opinion has been prepared and filed by the Superior Court in most of these cases and copies of the memorandum opinion have been forwarded to the chief counsel for the parties and to the lower court. These memorandum opinions contain the rationale of the Superior Court in reaching its decision. Copies of these memorandum opinions may be procured by members of the Bar or any member of the public at the Prothonotary’s office of the Superior Court in the district in which the case arose.

An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum is relied upon pursuant to this rule, a copy of the memorandum must be furnished to the other party and to the Court.

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