concurring:
I concur in the result reached by the majority but I have reservations about the majority’s finding that the lower court judge is without jurisdiction over the recusal motion.
While I do not perceive the Honorable Judge Snyder as the trial Judge to have acted in excess of his jurisdiction, I certainly agree that he should not have acted as he did in conducting the hearing on the recusal motion. The propriety of his actions is, however, different than his power to act and it is this difference that causes me to write separately.
The majority would conclude that Judge Snyder had jurisdiction to determine the sufficiency of the allegations made by petitioners below, but that upon a finding that the allegations would be sufficient, if true, to cause his recusal, the judge would no longer have jurisdiction to entertain the motion. This notion of jurisdiction as resting in an individual jurist, as opposed to a tribunal, is one with which I cannot agree. In this regard, I believe that the Commonwealth Court correctly noted in US. Steel v. Papadakos, 63 Pa. Cmwlth. 213, 437 A.2d 1044, 1046 (1981) that “[t]he question of jurisdiction is resolved by examining the authority of the tribunal not the individuals who compose it.” (emphasis in original). Moreover, even assuming arguendo that the jurisdiction of Judge Snyder were different than that of other members of the Common Pleas Court, I am unable to subscribe to the view that his jurisdiction exists only until a certain quantum of evidence is amassed at which time it shifts to another judge.
I would, however, issue the writ of prohibition. This is so because I believe that our Supreme Court has indicated that the writ can be used in cases in which there is “extreme necessity for the relief requested to secure order and regularity in judicial proceedings”, even though the lower court has jurisdiction or the power to act as it did.
As the majority clearly explains, traditionally a writ of prohibition would issue only if the low4er court acted without jurisdiction. In Carpentertown Coal & Coke Co. v. Laird, *502360 Pa. 94, 61 A.2d 426 (1948), our Supreme Court explained that the principal purpose of the writ is to prevent an inferior judicial tribunal from assuming a jurisdiction with which it is not legally vested in cases where damage and injustice would otherwise be likely to follow from such action.
In Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A.2d 134, 136 (1974) the Supreme Court held that in Carpentertown it had established a two-prong test to be used in determining whether the writ should be issued. The test is:
The first aspect of the test is whether adequate remedies are provided at law to afford relief.
The second prong of the test is whether there is extreme necessity for the relief requested to secure order and regularity in judicial proceedings.
As early as 1963 our Supreme Court indicated that a writ of prohibition could be used to prevent the enforcement of a lower court order which directed the District Attorney to turn over to a defendant certain information. In Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963) the Court found that the record indicated that the lower court had issued a discovery order without the evidence necessary to compel discovery. No suggestion was made that the lower court lacked jurisdiction to compel discovery, but rather that it did so erroneously. The court noted that the cases were not in accord as to the extent or limitation of a writ of prohibition, but found authority to issue it based on its plenary powers. While the exercise of such plenary powers over all inferior tribunals does not rest with this court, the Caplan opinion is instructive in that in order to alleviate further confusion as to the extent or limitations of the writ, the court expressly overruled its earlier decision in Commonwealth v. Mellon National Bank & Trust Co., 360 Pa. 103, 61 A.2d 430 (1948).
In Mellon, 360 Pa. at 112, 61 A.2d at 435 the Court held: “Since the Court below was acting within its jurisdiction *503when it directed that the subpoena issue, this record presents no case for a writ of prohibition.” The Mellon opinion, had explained at some length that where the general scope and purpose of the action is within the jurisdiction of the court any error was to be the subject of appeal and not cause for the issuance of a writ of prohibition.
I interpret the express overruling of Mellon in a case in which the Supreme Court said it would entertain a petition for writ of prohibition, raising non jurisdictional grounds as an implied abandonment of the requirement that the lower court have acted without jurisdiction in order for a writ of prohibition to issue. See also Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565, 570 n.3, 393 A.2d 306, 308 n. 3 (1978) (Public concern, particularly in the field of criminal law, with respect to proper order and regularity in judicial proceedings may call for use of the writ), Pirillo v. Takiff 462 Pa. 511, 341 A.2d 896 (1975) (Writ is issued as a matter of discretion to prevent a lower court from acting outside its jurisdiction and to prevent it from abusing its discretion... It is often used where the trial judge has acted in a blatently unlawful manner.)1
I conclude that the writ should issue since it is necessary to secure order, impartiality, fairness and regularity in these judicial proceedings. I also believe, as the majority does, that petitioners are without an adequate remedy at law. Public confidence in the judicial system is certainly eroded when a judge acts as judge in his own cause. Knowing as we do that the lower court judge should not proceed further in this matter, we cannot fail to act.
. "The Supreme Court of Pennsylvania recently has supplanted the traditional inquiry of a prohibition proceeding into the inferior court’s jurisdiction with a two-legged test in which the adequacy of other remedies and the necessity of the circumstances are the determinative criteria”.
Comment, "the Writ of Prohibition in Pennsylvania,” 80 Dick.L.Rev. 472, 483 (1976) (footnotes omitted).
"Most significantly, the court no longer strictly adheres to the rule demanding a lack of jurisdiction as a prerequisite to issuance of a . prohibitory writ.” 80 Dick.L.Rev. 499.