Civil Practice

Lawyers Frustrated by Unreported Superior Court Cases

, The Legal Intelligencer

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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not agree on whether or not the state Superior Court has been issuing an increasing number of important decisions as nonprecedential opinions, nearly all attorneys who spoke with the Law Weekly agreed that the inability to use the unreported opinions is an ongoing problem.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 Although both decisions arguably had statewide importance, they were initially issued as nonprecedential memoranda.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 Ninety-four percent of those were issued as nonprecedential memoranda.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 While nonprecedential opinions are not determinative in any court, in both the commonwealth and federal courts, nonprecedential opinions can be cited for their persuasive value.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Charles L. Becker of Kline & Specter agreed that the large number of unreported decisions means that some nonprecedential analysis may bear on future cases, which could be problematic.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.

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