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At the full-court conference held last month, Pennsylvania Superior Court judges voted to amend the procedural codes that govern unpublished memoranda; however, the decision whether to publish opinions will still remain within the discretion of the 23-judge panel. Judge Kate Ford Elliott provided the keynote speech at the Pennsylvania Bar Association Civil Litigation Section’s Pittsburgh Regional Dinner held in March, during which she announced that the Superior Court was in the process of re-examining the aspects of unpublished memoranda that had drawn criticism. According to an article in the Civil Litigation Update published by the Pennsylvania Bar Association, Ford Elliot noted during her speech that unpublished memorandum opinions are “essential to the caseload” of the court and are well-suited to the multitude of routine cases which come before the court. However, critics have claimed that the court has handed down unpublished decisions in cases dealing with issues of first impression and in cases where there was little or no appellate guidance. Some of the cases have dealt with controversial topics such as bad faith and repressed memory. Many of the cases have been accepted for review by the Pennsylvania Supreme Court. In addition to the question of which types of cases were being dispensed with via unpublished memorandum decisions, there is the additional issue of the proliferation of cases in which no opinion was ever made part of the record. In an article published in the Pennsylvania Law Weekly last November, it was reported that from January 1999 through May 1999, 94 percent of the court’s opinions and orders were never published, an increase of 9 percent since 1990. While criminal cases account for the bulk of memorandum decisions, during the same six-month period the Superior Court published 128 of its opinions in civil suits and 783 went unpublished. According to Mitchell Gruner, Superior Court administrative chief of staff, the amendments that were approved in May had been on the court’s agenda for quite some time. Gruner said that in late 1997 the court sent surveys to every inter-state appellate court to obtain feedback on issues which have been looked at since 1998, from mediation to the publication process. “This [unpublished decisions] was just one of many items under consideration for review,” Gruner said. “We evaluate our procedures all the time,” said Ford Elliot. “We try to determine how to provide the best product we possibly can.” The judges have since agreed to establish standards to indicate when a judge should favor publishing his or her opinion as opposed to issuing an unpublished memorandum. Some of the factors supporting publication: �If the case establishes a new rule of law. �If there is an apparent conflict of authority. �If the case addresses legal issues of continuing public interest. �If the opinion modifies or criticizes a current rule of law. �If the ruling is by the court en banc. �If the decision applies an existing rule to facts significantly different than those stated in a prior decision. Another operating procedural change will be a provision by which a party can request a decision be published as long as the party provides a written request within 14 days of the Superior Court judge’s decision filing date or if the request is made in a brief submitted prior to that date. Section 65.37 of the Superior Court’s Internal Operating Procedures presently states that an “unpublished memorandum decision shall not be relied upon or cited by a court or a party in any other action or proceeding.” A tentative proposal set forth by Ford Elliot in her speech prior to the conference was to allow citation to unpublished memorandum opinions in other cases, even though they could not be used as a precedent. While the judges addressed the issue in May, it was voted down. Gruner said that he was certain given the amount of discussion surrounding this particular matter, it will reappear on the agenda at a later conference. The court convenes at least four times per year via telephone conference as well as in person. The amendments to Section 65.37 will become effective after they are published in the July 8, 2000, Pennsylvania Bulletin.

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