In 2017, the Pennsylvania judiciary enacted Pa. R.A.P. 126(2), which finally rendered unpublished Pennsylvania Superior Court decisions citable in state-court briefing. I discussed it at the time (see “Appellate Notes”). That amendment was supposed to put an end to citational gamesmanship with respect to unpublished Superior Court decisions, which were largely available only to lawyers who paid for access to online reporting services. However, new Rule 126(2) only applied to memorandum decisions issued “after May 1, 2019.” See also Super. Ct. I.O.P. Section 65.37 (“An unpublished memorandum decision filed prior to May 2, 2019, shall not be relied upon or cited by a court or a party in any other action or proceeding, except in special circumstances.”).

Unfortunately, a review of relevant precedents establishes that too many lawyers are still citing caselaw that the appellate courts cannot use. Some of these decisions rejecting appellate counsel’s reliance on uncitable precedent are themselves published, starting with the Pennsylvania Supreme Court’s critique of the appellant’s “repeated” citations to three unpublished memoranda in Commonwealth v. Finnecy, 249 A.3d 903, 910 n.9 (Pa. 2021) (“Because each of these decisions were filed prior to May 1, 2019, none of them may be cited for their persuasive value.”) (citing Rule 126(b)).

Wenk v. State Farm Fire & Casualty, 228 A.3d 540 (Pa. Super. 2020), is the initial Superior Court published decision so holding. Wenk dropped a footnote cautioning counsel against “improper” citation of earlier Superior Court memoranda:

Although Pa. R.A.P. 126 recently was amended to allow parties to rely on non-precedential unpublished decisions of this court as persuasive authority, this amendment applies only to decisions filed after May 1, 2019. As this memorandum was filed four years earlier, on April 1, 2015, this unpublished memorandum cannot serve as persuasive authority.

Similarly, the appellant in Interest of R.H., 320 A.3d 706, 716 (Pa. Super. 2024), “improperly relied” on a pre-126(b) unpublished opinion, and was not only wrong, but loud wrong:

Appellant states that a nonprecedential decision may be cited for persuasive value pursuant to Pa.R.A.P. 126(b) and Superior Court I.O.P. 65.37. However, he fails to note that Rule 126(b) specifically refers to decisions filed after May 1, 2019, and the above case was filed Feb. 1, 2018. As such, we do not consider this authority. Consequently, the appellant is not entitled to relief.

Even more recently, Zappacosta v. McAvoy cited Wenk in a similar admonition. ___ A.3d ___, 2024 PA Super 225, 2024 Pa. Super. Lexis 426 (April 16, 2024). The appellant had cited “an unpublished decision of this court prior to May 2, 2019, that cannot be relied upon, even for its persuasive value,” (also citing Rule 126(b)).

The appellants’ reliance on several uncitable, pre-2018 Superior Court memoranda prompted the appellee to move to strike the offending brief in Jacks Auto Parts Sales v. MJ Auto Body & Repair, 305 A.3d 162, 176 n.10 (Pa. Super. 2023). That motion became moot, but the court expressly cautioned counsel:

We note that unpublished memoranda filed by this court prior to May 1, 2019, have no precedential value and citing to them violates our internal operating procedures. Based on our disposition, we need not address the motion to strike and DENY it as moot. However, we caution appellants’ counsel to comply with this court’s operating procedures, and in the future, not to cite to unpublished cases filed prior to May 1, 2019.

A more reluctant admonition occurred in Commonwealth v. Jones, 271 A.3d 452 (Pa. Super. 2021), where the uncitable memorandum decision “was on point and would support our conclusion that we may consider the video, but it was decided before May 2, 2019, and therefore cannot be relied upon, even for its persuasive value.”

Humphrey v. GlaxoSmithKline, 263 A.3d 8 (Pa. Super 12021), rejected multiple “references to the phrase ‘obvious and close nexus’” because they occurred in “decisions that were filed prior to May 1, 2019,” so that “none of them may be cited for their persuasive value.” See also Commonwealth v. James, 297 A.3d 755, 767 n.8 (Pa. Super. 2023) (pre-2018 memorandum “may not be cited or relied upon”); LSF8 Master Participation Trust v. Petrosky, 271 A.3d 1288, 1292 (Pa. Super. 2022) (rejecting citation to pre-2018 memorandum as “impermissible”).

Nor are trial courts immune from such missteps, and on occasion have even been reversed for doing so. See Commonwealth v. Johnson, 2023 Pa. Super. Unpub. Lexis 922, at *4 n.3 (Pa. Super. 2023) (pre-2018 memorandum cited by trial court was contrary to subsequent precedent). A “trial court’s reliance on” an “unpublished decision ... filed on Aug. 30, 2018, ... could not serve as persuasive authority” in Commonwealth v. LeClair, 236 A.3d 71, 86 n.7 (Pa. Super. 2020). But that error “did not affect our analysis.” In D’Amelia v. Toll Brothers, 235 A.3d 321 (Pa. Super. 2020), the court noted that “the trial court’s citation to an unpublished Superior Court memorandum violates [I.O.P.] 65.37, which prohibits citation to unpublished memorandum decisions filed prior to May 1, 2019. The same common pleas citational error occurred in Azaravich v. Wilkes-Barre Hospital, 318 A.3d 876, 886 n.6 (Pa. Super. 2024).

Unpublished criticisms of appellate counsel for failure to comply with Rule 126(b) abound. Given their number, this article collects only those decided since the author’s most recent article on this issue, in May, 2020, which cited early decisions enforcing Rule 126(b). See Commonwealth v. Clegg, 2024 Pa. Super. Unpub. Lexis 2271, at *46 (Pa. Super. Sept. 13, 2024); Commonwealth v. Fitzgerald, 2023 Pa. Super. Unpub. Lexis 2623, at *14 n.4 (Pa. Super. 2023) (table at 307 A.3d 678); Commonwealth v. Rankins, 2023 Pa. Super. Unpub. Lexis 1580, at *10 n.8 (Pa. Super. 2023) (table at 301 A.3d 928); U.S. Bank v. McAfee, 2023 Pa. Super. Unpub. Lexis 1210, at *19 n.9 (Pa. Super. 2023) (table at 299 A.3d 902); Kohut v. Vlahos, 2022 Pa. Super. Unpub. Lexis 2800, at *31 (Pa. Super. 2022) (table at 289 A.3d 96); Commonwealth v. Garanin, 2021 Pa. Super. Unpub. Lexis 2049, at *15 n.12 (Pa. Super. 2021) (table at 260 A.3d 177); Commonwealth v. Lonergan, 2021 Pa. Super. Unpub. Lexis 763, at *12 n.4 (Pa. Super. 2021) (table at 251 A.3d 1251); In re McCrum, 2020 Pa. Super. Unpub. Lexis 2110, at *14 n.10 (Pa. Super. 2020) (table at 237 A.3d 1093).

Finally, it is probably even worse for an appellate practitioner affirmatively to assert Rule 126(b) erroneously, than it is to violate it. That happened in Commonwealth v. Heidelberg, where the court noted that “contrary to the commonwealth’s argument, citation to the [decision in question] is not improper” because the decision “was filed on Dec. 16, 2019,” which complied with the rule. 267 A.3d 492, 502 n.7 (Pa. Super. 2021).

James M. Beck, a member of the Reed Smith life sciences health industry group, focuses his practice on complex personal injury and products liability litigation. He has experience in developing legal defenses, master briefs and dispositive motions in numerous mass torts, and has prepared amicus briefs on behalf of a variety of national organizations. Contact him at [email protected].