Keeping Up with your Sister Court: Unpublished Memorandums, No-Citation Rules, and the Superior Court of Pennsylvania

Authors

Logan Hetherington, Dickinson School of Law of the Pennsylvania State University

Abstract

As Pennsylvania’s intermediate appellate court of general jurisdiction, the Pennsylvania Superior Court decides thousands of cases each year. The vast majority of those cases are disposed of via unpublished memorandums. These unpublished memorandums are designated as non-precedential and may not be cited by parties before the Superior Court. As a result, litigants and their counsel may not even persuasively cite an unpublished memorandum in briefs or other papers submitted to the Court. Thus, if counsel finds an unpublished memorandum deciding the identical issue of the case at hand and counsel is before the Superior Court judge who authored that opinion, counsel is still unable to cite that unpublished memorandum, even though counsel can freely cite sources such as Mark Twain or Howard Stern. However, the Commonwealth Court, Pennsylvania’s other intermediate appellate court, has recently amended its procedures to allow for persuasive citation to its unpublished memorandums. This development has led to recent controversy and calls for change in the Superior Court’s procedures.

This Comment will first examine the history of the debate over unpublished judicial opinions and their precedential value on the federal level. This Comment will then explore the debate regarding use of unpublished opinions in the Commonwealth of Pennsylvania. Next, this Comment will analyze the various arguments in support of the use of unpublished decisions and will examine these arguments in the context of Pennsylvania’s court system. Lastly, this Comment will recommend that the Superior Court adopt the approach recently taken by Pennsylvania’s other intermediate appellate court, the Commonwealth Court, and allow persuasive citation to unpublished memorandums. Such a change would not only benefit litigants and counsel, but it would also aid the Superior Court and enhance public confidence in the judiciary.

Recommended Citation

Logan Hetherington, Keeping Up with your Sister Court: Unpublished Memorandums, No-Citation Rules, and the Superior Court of Pennsylvania, 122 Dick. L. Rev. 741 (2018).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol122/iss2/9