In Re Appointment of District Attorney

LEADBETTER, Judge,

concurring.

I concur in the result reached by the majority and its analysis of the merits in this case. I write separately because I believe that the administrative order entered by the court of common pleas may not be reviewed in our appellate jurisdiction. The order appealed here serves not to adjudicate questions of fact or issues of law, but instead directs the appointment of Andrew Jarbola to fill the vacancy in the office of district attorney. Since there were no adversary proceedings below, the legal issue which appellants seek to raise here cannot have been brought to the attention of the common pleas court, let alone addressed by it.

Even a cursory examination of the rules of appellate procedure reflects numerous provisions inconsistent with the concept of direct review of non-adjudicatory, administrative orders. 1 More fundamentally, the essence of appellate review is the examination of the record below in order to evaluate claims of error. Where there have been no proceedings of record below, no fact-finding and no opinion in support of the order, it will be impossible in most cases to undertake meaningful review. Indeed, as the majority notes at footnote 6, “This court’s review is limited to a determination of whether the trial court committed legal error and whether the findings were supported by the evidence.” This scope of review makes no sense whatever when we are asked to review an order confirming a discretionary appointment. 2

Simply put, we are being asked to review the action of the court of common pleas not in the manner that appellate courts review trial court decisions, but in the manner that courts review the actions of parties before them — by making a de novo determination whether the action violated some legal,right of appellant. This exercise ordinarily involves both fact-finding and application of law to the facts. For this reason, I believe that challenges to administrative orders can properly be addressed only in proceedings under our original jurisdiction 3 , in which the parties will be clearly defined and necessary factual determinations can be made.

That being said, however, we are presented here solely with an issue of law ripe for our disposition. All interested persons have appeared before this court. The case is highly time-sensitive, and of obvious public importance. I believe it is appropriate under these unique circumstances to treat this matter as though it had been filed as an action for declaratory judgment in our original jurisdiction. Accordingly, I would do so and would decide the question of law in accordance with the majority.

.For instance, Pa. R.A.P.1921 contemplates the composition of the record on appeal from a lower court and states that "[t]he original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.” Rule 1925 requires "the judge who entered the order appealed from ... shall forthwith file ... an opinion, of the reasons for the order.” Pa. R.A.P.1925. Rule 908 provides that parties in the trial court are the parties on appeal. Finally, Rule 302(a) mandates that issues not raised in the trial court may not be raised for the first time on appeal.

. Moreover, where there have been no parties below, the appellants will necessarily have been non-parties, and unless some other non-party moves to intervene, there will be no appellees, or else the áppellees will be whomever the appellant chooses to serve with his notice. This will frequently pose significant problems in ascertaining both that those who appear have the requisite standing and also that all-real parties in interest are represented before the appellate court.

. See 42 Pa.C.S. § 761. Where appropriate, an original action could also be filed in the Pennsylvania Supreme Court pursuant to 42 Pa.C.S. § 721, or pursuant to that court’s King’s Bench powers.