In 2017, the Pennsylvania judiciary enacted Pa. R.A.P. 126(2), which finally rendered unpublished Pennsylvania Superior Court decisions citable in state-court briefing. I discussed it at the time (see “Appellate Notes”). That amendment was supposed to put an end to citational gamesmanship with respect to unpublished Superior Court decisions, which were largely available only to lawyers who paid for access to online reporting services. However, new Rule 126(2) only applied to memorandum decisions issued “after May 1, 2019.” See also Super. Ct. I.O.P. Section 65.37 (“An unpublished memorandum decision filed prior to May 2, 2019, shall not be relied upon or cited by a court or a party in any other action or proceeding, except in special circumstances.”).

Unfortunately, a review of relevant precedents establishes that too many lawyers are still citing caselaw that the appellate courts cannot use. Some of these decisions rejecting appellate counsel’s reliance on uncitable precedent are themselves published, starting with the Pennsylvania Supreme Court’s critique of the appellant’s “repeated” citations to three unpublished memoranda in Commonwealth v. Finnecy, 249 A.3d 903, 910 n.9 (Pa. 2021) (“Because each of these decisions were filed prior to May 1, 2019, none of them may be cited for their persuasive value.”) (citing Rule 126(b)).