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Earlier this month, the Pennsylvania Supreme Court approved a long-gestating rule change that will allow lawyers to cite unpublished state Superior Court memorandum opinions for their persuasive value.

The move, which amends Rule 126 of the Pennsylvania Rules of Appellate Procedure, is one that many appellate lawyers have been calling for for some time, and it brings the Superior Court in line with Pennsylvania's other intermediate appellate court, the Commonwealth Court, which has allowed practitioners to cite unreported memorandum opinions since 2008.

It does come with one caveat, however: Only unpublished opinions issued after May 1 of this year will be citable.

Personal injury attorney Scott Cooper of Schmidt Kramer in Harrisburg, who until last year was a member of the Appellate Court Procedural Rules Committee that recommended the amendment, said the committee decided to make the rule change prospective in order to minimize its impact on ongoing litigation.

But John Hare, chair of the appellate advocacy and post-trial practice group at Marshall Dennehey Warner Coleman & Goggin in Philadelphia, said part of the reason the rule needed to be changed was that attorneys were already ignoring it anyway.

The court began making unpublished memorandums available online about six years ago. Since then, Hare said, there have been increasing instances of attorneys citing to those cases, despite what he called a ”very strong prohibition” against that practice that dated back to the 1970s.

“The rule was generally followed for all those years between late '70s up to a few years ago because those opinions weren't even available—you literally couldn't find them,” Hare said.

Howard Bashman, another veteran Pennsylvania appellate lawyer and longtime proponent of amending Rule 126, said that, when he started practicing in the early 1990s, there was virtually no way to know an unpublished opinion even existed unless it was issued in your case or a colleague passed it along because they thought it might be helpful.

“But once the court said, 'You still can't cite to these things but we're going to put every single one of them online,' that was the first step on the path to the inevitable conclusion that people would eventually be able to cite to them,” he added.

Which is why Bashman said he's not particularly concerned about a possibility Cooper raised: That the Superior Court may begin churning out more per curiam orders, which will not be citable under the amended rule.

If that were going to happen, Bashman said, it most likely would have started as soon as memorandum opinions became available online.

Bashman said that, like the Commonwealth Court, the federal courts made memorandums citable for persuasive value more than a decade ago, with no ill effects.

He said the Rule 126 amendment “recognizes that when cases are up on appeal, courts are not simply deciding one specific case just for the purposes of that case, but rather are trying to apply rules that have applicability beyond that.”

In a press release by the Administrative Office of Pennsylvania Courts, Supreme Court Justice Christine Donohue said the rule change ”fosters consistent treatment of litigants by the various panels of the appellate courts and aids the bar in its presentation of cases.”

One ancillary effect the rule change may have, some practitioners said, is a reduction in requests by parties to publish Superior Court decisions.

“It was all or nothing before,” explained longtime appellate attorney James Beck of Reed Smith in Philadelphia. “If you got a good result and you wanted to be able to use it [for its precedential or persuasive value], you had to petition for publication. Parties that might have felt they had to go and seek publication in order to use the fruits of their labor now won't bother.”

Beck notably wielded the strictures of Rule 126 to challenge a mention of an unpublished Superior Court opinion made by his opposing counsel—Bashman—in a high-profile products liability case back in 2016.

During an argument session in Martinez v. American Honda Motor, on appeal from a $55 million jury verdict against Honda, Bashman, representing the plaintiffs, referenced a nonprecedential decision the Superior Court had made on a related issue. Beck, representing Honda, quickly pounced on the reference in a post-argument filing, claiming Bashman had violated court procedure. The parties sparred over the issue but the Superior Court ultimately upheld the verdict.

Still, Beck welcomes the Rule 126 amendment.

“My personal view is that the existence of non-citable appellate decisions violates the open courts clause” of the Pennsylvania Constitution, he said.

But Beck was also quick to point out that the rule change is not retroactive.

“So Martinez will never be citable,” he said with a laugh, “which is fine with me.”