Civil Practice

Lawyers Frustrated by Unreported Superior Court Cases

, The Legal Intelligencer

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gavel and book

Several attorneys suggested that nonprecedential memorandum decisions should be published on an easily accessible platform.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Superior Court Judge David N. Wecht said he has heard talk from the bar about attorneys' wishes to be able to cite nonprecedential memoranda as persuasive authority.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capabilities is going to continue to put pressure on the existing practice of not allowing any citation whatsoever to nonprecedential decisions."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 Along with the 4,612 nonprecedential decisions issued in 2012, the court also issued 277 published opinions as well as numerous motions seeking wire taps and other dispositions, she said.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According to Byer, the large workload may factor into the high number of nonprecedential decisions, as the unreported opinions may not require the same level of detailed review.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."

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