gavel and book

While attorneys might not agree on whether or not the state Superior Court has been issuing an increasing number of important decisions as nonprecedential opinions, nearly all attorneys who spoke with the Law Weekly agreed that the inability to use the unreported opinions is an ongoing problem.

Late last year, the Superior Court issued a decision in Parr v. Ford Motor, finding that a contested theory of injury caused in a rollover accident could be argued before a jury. A month earlier, the court nixed a plaintiff’s argument that an antidepressant led to an abortion in Thomas v. SmithKline Beecham. Although both decisions arguably had statewide importance, they were initially issued as nonprecedential memoranda. In January, the Parr opinion was reissued by the court as a published opinion, but at least one attorney is seeing a trend.

“My impression is, particularly in the Superior Court, that memorandum opinions are being overused,” said Robert L. Byer, head of the appellate practice at Duane Morris in Pittsburgh. “I’ve been seeing them with greater frequency. I know when I read them they should have been reported and treated as precedential. Not necessarily because I agree with them, but because I do not think they meet the criteria for a nonreported opinion.”

According to statistics from the Administrative Office of Pennsylvania Courts, the Superior Court issued nearly 5,000 opinions each in 2011 and 2012. Ninety-four percent of those were issued as nonprecedential memoranda.

According to attorneys, the vast majority of opinions going unreported means that most of the work the Superior Court does cannot be used by the bar. While nonprecedential opinions are not determinative in any court, in both the commonwealth and federal courts, nonprecedential opinions can be cited for their persuasive value.

Many attorneys agreed this would be helpful in the Superior Court.

“As a litigator, it can be frustrating to see that the court has ruled on the same issue one or two times,” and yet the cases cannot be used, said appellate attorney John Hare, of Marshall Dennehey Warner Coleman & Goggin.

Charles L. Becker of Kline & Specter agreed that the large number of unreported decisions means that some nonprecedential analysis may bear on future cases, which could be problematic.

“The court may wish to discuss allowing citation of memoranda at least for their persuasive value,” he said.

Over a year ago, the Superior Court began posting its unreported memorandum decisions to the AOPC’s website daily. While attorneys agreed this means the court is no longer creating a vast body of inaccessible law, the cases are still difficult to research, many attorneys said.

Several attorneys suggested that nonprecedential memorandum decisions should be published on an easily accessible platform.

“Part of the beauty of the common law system is that common law is made when judges issue reasoned decisions that explain the rationale for a result so that the decisions then can be applied as a precept to inform the outcome for the next case,” Byer said. “When judges are announcing decisions but not making those decisions readily available to researchers, aside from posting on the Web daily, it creates problems and distorts the system. Even if it can’t be cited, it sure tells you what a judge is thinking, and, if they’re on your panel, it’s something you’d like to know.”

Superior Court Judge David N. Wecht said he has heard talk from the bar about attorneys’ wishes to be able to cite nonprecedential memoranda as persuasive authority. The conversation, according to Wecht, has also posed the question of whether more parties should be able to petition the court to reissue the case as precedential and whether the time period for parties to file these petitions should be expanded.

“I think we’re in a transitional period in part because of the application of advanced communication technologies in areas that were formerly paperbound,” Wecht said. “The availability of electronic search capabilities is going to continue to put pressure on the existing practice of not allowing any citation whatsoever to nonprecedential decisions.”

Busiest Court in the Country

According to President Judge Susan Peikes Gantman—and several other attorneys who spoke with the Law Weekly—the Superior Court is the busiest court in the country. Along with the 4,612 nonprecedential decisions issued in 2012, the court also issued 277 published opinions as well as numerous motions seeking wire taps and other dispositions, she said.

“All of our cases are important. They are adjudicating disputes. We view each case very thoroughly, whether it’s a published case or a memorandum,” Gantman said, noting that the Superior Court is both an appellate and an error-correcting court. “I would say that our judges are very hard-working and serious. They take tremendous pride in all the work they do. It is given serious consideration.”

According to Byer, the large workload may factor into the high number of nonprecedential decisions, as the unreported opinions may not require the same level of detailed review.

“You want to take greater care in writing a published opinion, and that’s time-consuming,” he said. “These judges are having to write at least one opinion a day. That’s a huge burden.”

Becker suggested that the large caseload has led the court to take a conservative approach when it comes to publishing new legal precedent.

“The Superior Court institutionally is taking a cautious approach to publishing opinions because of its tremendous workload. The court wants to ensure that its precedential opinions are thorough and answering questions without creating unintended problems,” Becker said. “The judges know their role in developing Pennsylvania law. They want to develop the law prudently and carefully.”

Opinions are generally published if they establish new law, apply existing law to a unique set of facts, modify or criticize existing law, resolve conflicts within the courts, involve a legal issue of public interest, or significantly contribute to the body of law, among other things. The judges on a case’s panel take a vote to decide whether or not a decision is ultimately deemed precedential. If the attorneys on either side or the trial judge who handled the case feel that the opinion should have been reported as precedential, they have 14 days to make a motion.

“I think the court is conscious between the cases that attract attention and those truly worth reporting from a legal standpoint,” Hare said.

Hare pointed to the recent decision in Stettler v. Allied Signal, which led to 18 cases transferred, as the type of opinion that should be left unreported because, despite a lot of legal interest, it applied existing interpretations of venue statutes to a familiar fact pattern.

The court’s decision in Commonwealth v. Lynn, he said, was a good example of a high-profile case that was rightly issued as a reported decision, not because of media attention, but because the law ruled on a new application of a statute.

However, whether or not an opinion is worth deeming precedential is to some extent a matter of opinion.

“There are always going to be instances where perhaps what the judges think about the importance of the case might not be what the parties or other people think about it,” appellate attorney Howard Bashman said. “It’s difficult for the people on the outside to second-guess when you don’t have the same considerations that the judges have.”

Along with workload considerations, attorneys agreed that if the majority of the Superior Court’s caseload were reported, the amount of new precedent created each year would be daunting.

“If every decision were published, there’d just be so much to sort through and you’d have to take into account all these decisions where you’d have to decide if you should cite everything that was pertinent,” Bashman said.

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI. •