Shaulis v. Pennsylvania State Ethics Commission

Justice LAMB

concurring.

I join Section II of the majority opinion, denominated “Constitutionality”, in the discussion of the principal substantive issue here raised and I agree that Section 1103(g) of the Ethics Act1 (Act) is unconstitutional to the extent that it purports to regulate the conduct of attorneys who are former government employees. I write separately, however, to express disagreement with the discussion in the Section I of the majority opinion, denominated “Standing”, and having to do with the issue of the appealability of the Commission’s advices issued, as these advices were, pursuant to the authority invested in the Commission by 65 Pa.C.S. §§ 1107(10)-1107(11), to issue opinions and written advice on request of persons who inquire as to their duties under the Act. I would not permit an appeal from such opinions or written advices as they are not, in my view, an “adjudication” as that term is defined in the Administrative Agency Law. See 2 Pa.C.S. § 101. They are *697not a final order, decree, decision, determination or ruling of the Commission, but are properly categorized, in the terms of the Act, as opinions and written advice.

Nevertheless, I would not on that ground avoid the important substantive issue before us. As Judge McGinley noted in concurring and dissenting from the decision below, Katherine Shaulis had available to her an action in declaratory judgment brought in the Commonwealth Court’s original jurisdiction by which to obtain judicial review of the Commission’s advice.2 Equally, as Judge McGinley also emphasized, the Commonwealth Court was possessed of authority under Pennsylvania Rule of Appellate Procedure 15043 to “regard and act upon” the petition for review filed by Ms. Shaulis as if it were a complaint in declaratory judgment. Under these circumstances, while a remand to the Commonwealth Court for the purpose of exercising its authority under Pa.R.A.P. 1504 would be procedurally appropriate, such action would accomplish only additional delay before the eventual return of the identical issue to this Court for resolution. Therefore, in the interest of deciding this important issue with all possible dispatch, I would treat the matter as having been decided below under Pa.R.A.P. 1504, thereby reaching the issue of the validity of Section 1103(g) of the Act without the necessity of categorizing the Commission’s opinions and written advices as appealable adjudications.

. Act of October 15, 1998, P.L. 729, No. 93, § 1, 65 Pa.C.S. § 1103(g).

. On this ground I cannot agree with the suggestion in the majority opinion that the only alternative actions available to Ms. Shaulis were to appeal or to “jeopardize ... [her] ethical rating, her admission to practice law in the Commonwealth, and her reputation in the legal community.” Majority slip op. at 12 (quoting Shaulis v. State Ethics Comm'n, 739 A.2d 1091, 1100 (Pa.Cmwlth.1999)).

. Pa.R.A.P. 1504 as well as 42 Pa.C.S. § 5103 provide that where a party commences an appeal by means of a petition for review, as was done in this case, and the proper mode of relief is by an action in declaratory judgment, then the case shall not be dismissed, but shall instead be regarded and acted upon as a complaint in declaratory judgment.