This article originally ran in Law360 on March 5, 2019.
Pennsylvania's highest court has rolled back an intermediate appellate court's rule restricting litigants from citing its unpublished decisions, capping off a two-year-long effort kicked off by the Keystone State's appellate rules committee to align the practices of the two courts on that level.
Starting in May, litigants can cite nonprecedential decisions issued by the Pennsylvania Superior Court after that date for their "persuasive value," the state's Supreme Court ruled Monday. Previously, the Superior Court had barred litigants from citing opinions that weren't designated as published, although its sister court, the Commonwealth Court, had allowed that practice for years.
The justices' decision Monday is intended to standardize the way the two courts work, which the state's Appellate Court Procedure Rules Committee lobbied for in early 2017 when it put forward the proposed amendments.
Hawke McKeon & Sniscak LLP partner Kevin J. McKeon served as chair of the rules committee when the proposal was put forward, and he told Law360 on Tuesday that he thinks the majority of lawyers and judges will welcome the change. McKeon also noted that the move follows a nationwide trend.
"It reflects the federal appellate courts' 2006 decision to permit citation of unpublished opinions, and a similar recent trend among state appellate courts," McKeon said. "Pennsylvania's Commonwealth Court has permitted citation to its unpublished opinions for persuasive purposes for over a decade."
He pointed out that the bulk of the Superior Court's decisions are unpublished — 94 percent in 2016 — and said that if those opinions could make a difference in a pending case, "advocates should be permitted to cite them."
He also noted that the arguments against citing these decisions no longer hold water, as they hinged on access to information, which has become less of a problem in the internet age.
"Opponents of citation to unpublished opinions for persuasive purposes have long argued that allowing citation favors lawyers who specialize in particular niches over generalists who lack ready access to unpublished opinions, and that the sheer volume of unpublished opinions would overwhelm zealous advocates attempting to do comprehensive legal research," he said.
But with courts increasingly posting both sets of decisions on their websites, and online legal research databases making unpublished decisions easier to access, "those arguments have lost much of their force," McKeon said.
The amendment was also lauded by Conrad O'Brien partner Robert Feltoon, who championed the change in 2015.
"I am pleased to see the Supreme Court open the door to citing unpublished Superior Court decisions issued beginning in May 2019," Feltoon told Law360. "Hopefully once the courts get comfortable with the idea, the door will open wider to citing pre-May 2019 decisions, particularly given the Supreme Court's limitation that unpublished decisions are 'persuasive' and not binding."
--Editing by Breda Lund.