Upon Further Review

Howard Bashman.

As I discussed in my column from last month, thanks to a recent rule change, advocates are now allowed to cite to the unpublished, nonprecedential opinions that thePennsylvania Superior Court has issued on or after May 2, for their persuasive value. The approach that the Superior Court will now be taking is similar to the approach that federal appellate courts have taken since 2007.

This month's column addresses a fundamental principle of appellate practice—the difference between a precedential and a nonprecedential appellate court ruling. Although it may seem quaint in our digital age to speak of “published” versus “unpublished” appellate court rulings, because when accessed online they all seem so similar, it remains and has traditionally been the case that published appellate court opinions serve as precedent, while unpublished appellate court opinions do not.

Fortunately, appellate courts are careful to denote the difference between these two types of opinions by labeling them as “for publication” or not for publication” or, in the Pennsylvania Superior Court, by describing the opinion as a nonprecedential memorandum opinion instead of as a precedential opinion. These descriptions are vitally important because published opinions constitute binding precedent, while unpublished opinions do not.

So what does it mean for an appellate court's published opinion to serve as binding precedent? In both the federal appellate courts and the Pennsylvania Superior Court, the answer is the same. A precedential opinion of a three-judge panel, unless and until it is overturned by the full court sitting en banc or by the ruling of a higher appellate court, will bind as precedent other three-judge panels of the issuing court in later cases and will bind as precedent all of the lower courts over which the appellate court possesses jurisdiction.

Thus, the precedential effect of a published opinion operates both horizontally, on future three-judge panels of the issuing court, and vertically, on the judges and litigants of the courts over which the issuing court has jurisdiction. For example, the U.S. Court of Appeals for the Third Circuit has jurisdiction over the federal district courts of Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands, while the Pennsylvania Superior Court has jurisdiction over all trial courts in Pennsylvania hearing cases not destined for appeal to the Pennsylvania Commonwealth Court.

Now let's consider the similarities and differences between the binding effects of precedential and nonprecedential appellate court rulings, starting with what's similar or the same. A precedential or nonprecedential appellate court ruling will be identically binding on the parties to the case in which the decision issued and will be identically binding on the trial judge in the case in which the decision issued when the case is returned from appeal.

Yet a nonprecedential appellate court's ruling will not bind as precedent other panels of the issuing court, or even the same panel of the issuing court in the future cases to be decided. Nor will a nonprecedential appellate court's ruling bind trial judges in other cases. Indeed, a nonprecedential appellate court's ruling won't even bind the trial judge in the case in which the nonprecedential decision issued in the next case that the trial judge must decide presenting the same issue.

As I have demonstrated, significant differences exist between the generally binding nature of published, precedential appellate court rulings and the generally nonbinding nature of unpublished, nonprecedential appellate court rulings. And these differences help explain why it is so much more difficult to obtain either en banc review or higher court review of nonprecedential appellate court rulings.

Whether an appellate court's unpublished, nonprecedential opinion will be of value to other cases pending in either the appellate court or a trial court will thus depend entirely on the opinion's persuasive value. If trial judges or appellate judges in other cases view an unpublished, nonprecedential opinion as persuasive, they can choose to follow it. If they do not view the opinion as persuasive, they can choose not to follow it.

This issue came to mind recently in connection with a reargument application that opposing counsel filed from a three-judge Pennsylvania Superior Court panel's unpublished, nonprecedential opinion in favor of my client regarding whether venue was proper in a given county under the rule providing that venue will be proper where a corporation regularly conducts business. This opinion issued before May 2, and thus cannot be cited in any other case even for its persuasive value.

But in a reply submitted in support of the reargument petition, the company on the losing end of the three-judge panel's ruling observed that the trial judge whose decision was reversed has many similar venue challenges assigned to him. Yet that argument would be meritorious only if a three-judge Pennsylvania Superior Court's unpublished, nonprecedential opinion could bind that trial judge when he is deciding other cases. And it is clear, for the reasons I have discussed above, that the unpublished, nonprecedential opinion in question would not be binding in any way on that trial judge in any other cases presenting similar issues that may come before him for decision.

Consequently, even though advocates can now cite for their persuasive value to unpublished Pennsylvania Superior Court opinions issued after May 2, I would be surprised to see any significant increases in the percentage of unpublished opinions in which either reargument en banc (before the full court) or Pennsylvania Supreme Court review is granted.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.