dissenting.
I respectfully dissent from the decision to deny the Commission’s motion to quash. An advisory opinion, even one which has the probable effect of altering future behavior, is not an adjudication within the meaning of the Administrative Agency Law, nor does it present this court with a justiciable appeal.
A fundamental and necessary aspect of any appealable decision is that it be binding. It is a further requirement of an administrative adjudication that it be final. The opinion issued by the Ethics Commission to Ms. Shaulis is neither. A vast difference exists between an opinion that proposed future conduct would violate the ethics laws and an order prohibiting such conduct. An order may not be violated with impunity, even if it is based upon an error of law. On the other hand, an advisory opinion based upon a flawed legal premise may be disregarded and the legal issue determined if and when any enforcement proceedings are initiated.1
Shaulis can obtain on appeal no more from this court than she did from the Commission, an advisory opinion. Although the Ethics Act empowers the Commission to issue such pronouncements, we have no similar authority. Benson Lincoln Mercury, Inc. v. Department of Transp., 145 Pa.Cmwlth. 159, 602 A.2d 496, 498 (1992). See also Suehr v. State Ethics Comm’n, 651 A.2d 648 (Pa.Cmwlth. 1994), alloc, denied, 541 Pa. 647, 663 A.2d 697 (1995). I do not believe that Suehr is factually distinguishable from this case. In both situations, the applicant sought an opinion regarding future conduct which would be financially rewarding. The opinion stating that the proposed actions violated the ethics laws had the probable effect of deterring that conduct, and thus depriving the applicant of the monetary benefit. The only conceivable distinction apparent from this record would appear to be a notion that the conduct in question was of greater importance to Shaulis than to Suehr, a premise which is both speculative and irrelevant.
I further disagree with the majority that Shaulis is without any other forum in which to assert her rights. Indeed, better alternatives are available. She could seek an injunction or a declaratory judgment2 in an original jurisdiction action, wherein she could obtain a binding adjudication of her rights rather than an advisory opinion. Moreover, because there is no factual record in an appeal from an opinion of this sort, we are not even in a position here to determine whether an actual case or controversy exists. In an original jurisdiction action, on the other hand, inquiry could be made into issues such as whether Shaulis has the present intention and ability to undertake the practice about which she has inquired or merely the hypothetical desire to do so. Representations by a litigant in an appellate brief do not provide a proper foundation for such assessments.
*1109In disregarding these well established principles of justiciability, the majority focuses, I believe erroneously, upon the probable practical effect of the action under review. However, promulgation of a regulation by an administrative agency, which carries a stronger interrorum impact on future exercise of property rights than the opinion at issue here, has long been held not to be an appealable adjudication. See Insurance Co. of N. Am. v. Insurance Dep’t, 15 Pa.Cmwlth. 462, 327 A.2d 411 (1974) [although in appropriate circumstances, an original jurisdiction action will lie, see Arsenal Coal Co. v. Department of Envtl. Resources, 505 Pa. 198, 477 A.2d 1333 (1984) ]. I can see no basis in logic or policy to justify these conceptually irreconcilable holdings.
For these reasons, I would quash this appeal and would not reach the other issues addressed by the majority.
. Although a favorable opinion would protect Shaulis from such proceedings, an unfavorable one would not similarly prohibit her from challenging their validity. See 65 Pa.C.S. § 1107(10).
. See Declaratory Judgements Act, 42 Pa.C.S. §§ 7531-7541. See also Wajert v. State Ethics Comm’n, 491 Pa. 255, 420 A.2d 439 (1990).