dissenting.
I respectfully dissent. I do not believe that this court’s October 27, 1994 single-judge opinion misapplied or misinterpreted the law with respect to the Insurance Commissioner’s (Commissioner) ability to delegate adjudicative powers; indeed, I do not believe that Section 213 of the Administrative Code1 allows the Commissioner to delegate her adjudicative powers where, as here, the Commissioner has already publicly proclaimed her judgment on the matter. Moreover, even if the Commissioner could delegate her adjudicative powers, I do not believe that, in this case, the Commissioner would thereby avoid the appearance of bias. Thus, I would deny the Pennsylvania Insurance Department’s (Department) Petition to Vacate or Open this court’s October 27, 1994 single-judge decision.
I.
The Majority asserts that the Commissioner has authority to delegate her adjudicative powers under Section 213 of the Administrative Code. I disagree.
Initially, I concede that, on its face, Section 213 seems to permit the head of an administrative department to delegate any power or duty of the agency head to a deputy commissioner, absent a constitutional requirement that the agency head personally exercise the power or perform the duty. However, I believe that our Supreme Court in Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975), placed an additional constitutional restriction on an agency head’s ability to delegate its powers and duties.
In Dussia, our Supreme Court considered whether a regulation implementing Section 711 of the Administrative Code, 71 P.S. § 251, created an impermissible commingling of functions in the Police Commissioner. The Court, as a preliminary matter, noted that Section 711 of the Administrative Code mandates that the Police Commissioner make the ultimate decision of guilt or innocence in proceedings against State Police personnel. The Court then examined whether an implementing regulation properly delegated the entire prosecutorial role of the Police Commissioner to the court-martial board. The Court determined that the regulation failed to do so. Thus, because the Police Commissioner retained some of his prosecutorial power and because he could not escape his statutorily mandated role as ultimate adjudicator, the Court held that there was an impermissible commingling of functions.
The Court in Dussia then had to consider an appropriate remedy for such a violation of due process rights. The Court stated that where a statute mandates that a commissioner make the ultimate decision in an adjudication and the commissioner has manifested bias through the exercise of the offensive prosecutorial function, constitutional due process rights have been violated beyond repair and any subsequent judicial decision would be tainted. The Court, therefore, granted a 'permanent injunction prohibiting any further court-martial proceedings. Unlike the Majority here, the Court did not decide that the Police Commissioner could avoid the appearance of bias by delegating his adjudica*230tive powers to a deputy under Section 213 of the Administrative Code.2
I believe that the same remedy is necessary here where the Unfair Insurance Practices Act (UIPA)3 mandates that the Commissioner make the ultimate decision in an adjudication4 and where the action of the Commissioner is even more egregious than that of the Police Commissioner in Dussia. Indeed, the Commissioner here has not merely manifested bias through exercise of the offensive prosecutorial function; she has openly pre-judged the case for which she is the ultimate and sole adjudicator. Thus, as in Dussia, I believe that constitutional due process rights have been violated beyond repair and any subsequent judicial decision would be tainted.
The Majority states that Dussia is not applicable here because it is a commingling of functions case that does not address the delegation of powers. (Majority op. at 226.) I disagree. As noted above, the issue in Dussia was whether a regulation properly delegated the entire prosecutorial role of the Police Commissioner to the court-martial board, thereby avoiding an impermissible commingling of functions. Although the Court in Dussia did not use the magic word “delegate” to describe the regulation’s purpose, it is evident from the regulation itself that its goal was to delegate some of the Police Commissioner’s prosecutorial responsibility to the court-martial board.5 Thus, I cannot accept the Majority’s attempt to distinguish Dussia on that basis.
Instead of Dussia, the Majority would apply Stone & Edwards Insurance Agency v. Department of Insurance, 161 Pa.Commonwealth Ct. 177, 636 A.2d 293 (1994), another commingling of functions ease dealing with the delegation of prosecutorial powers. (Majority op. at 226-27.) Unlike the Majority, I do not believe that Stone and Edwards is applicable here.
I believe that both Dussia and Stone & Edwards are commingling of functions cases concerning the proper delegation of prosecu-torial powers and that they are entirely consistent with one another. In Dussia, our Supreme Court determined that a regulation did not properly delegate the entire prosecu-torial role to the Police Commissioner; in Stone & Edwards, this court determined that the Commissioner did properly delegate all prosecutorial functions to a deputy. Thus, in Dussia, the Court held that there was an appearance of bias because of an impermissible commingling of functions; whereas, in Stone & Edwards, we held that there was not an appearance of bias because of an *231impermissible commingling of functions. In Dussia, the Court had to fashion an appropriate remedy for the appearance of bias where the statute mandated that the Police Commissioner serve as ultimate adjudicator; in Stone & Edwards, this court did not have to consider a remedy because there was no appearance of bias. Here, this court must consider an appropriate remedy for the Commissioner’s bias where Section 1171.8 of the UIPA, like Section 711 of the Administrative Code, mandates that the Commissioner serve as ultimate adjudicator. Clearly, Dussia is the only one of the these two cases to give us guidance in that regard. Thus, if only one of these cases is applicable here, it is Dussia, not Stone & Edwards.
Indeed, in Stone and Edwards, this court decided that Section 213 of the Administrative Code authorizes the Commissioner to delegate her investigatory and prosecutory functions which, unlike her adjudicatory functions, are discretionary in nature. We did not hold that the Commissioner could delegate her adjudicatory function to a deputy. In fact, to so hold would have been contrary to Dussia. If anything, our failure in Stone & Edwards to hold that the Commissioner could delegate adjudicative powers means, by implication, that the Commissioner may not delegate those functions. The Majority, in now holding that the Commissioner can delegate her adjudicatory powers, has failed to follow our Supreme Court’s direction in Dussia.
II.
Even if the Commissioner has authority under Section 213 to appoint a deputy as ultimate adjudicator, I do not believe that the Commissioner, in this case, could thereby escape the appearance of bias.
If the Commissioner could have delegated her adjudicatory powers here, it would have only been appropriate to do so before the Commissioner pronounced judgment. Here, however, the Commissioner did not attempt to delegate the adjudicative function until after she reviewed the evidence against Sherman and publicly proclaimed his guilt.6 By waiting until then to assign ultimate adjudicatory power to a deputy, who stands in her shoes and acts in her stead, the Commissioner has not given anything away but, rather, has retained the power in herself.7 Indeed, the Commissioner has merely arranged for another to voice what she has already determined. At a minimum, this scenario creates an appearance of impropriety.8
The Code of Judicial Conduct9 states that “[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned_” Canon 8 C of the Code of Judicial Conduct (Code) (emphasis added). Indeed, “[a] judge should ... conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2 *232A of the Code (emphasis added). In particular, “[a] judge should abstain from public comment about a pending proceeding in any court_”10 Canon 3 A(6) of the Code. Here, where the Commissioner has made a public comment which cloaks Sherman with guilt rather than innocence, and there is no independent body to act as ultimate adjudicator, any subsequent related proceeding against Sherman is impermissibly tainted.
III.
I realize that the outcome I have suggested prevents any further adjudication on the propriety of Sherman’s actions. However, what appears to be justice to the Department in seeking to proceed further against Sherman is, in reality, an injustice to Sherman;11 indeed, Sherman has already received his “forty stripes” at the hand of the Commissioner.12 If this court does not let the Commissioner know that it is intolerable to use one’s political position to publicly destroy an individual’s reputation without regard for that person’s due process rights, then such public officials will never learn. Indeed, by choosing to ignore the wrong committed by the Commissioner, this court today has decided to permit any commissioner with adjudicatory powers to openly denounce anyone under investigation for wrongdoing prior to a final adjudication and then, with impunity, delegate those adjudicatory powers after the damage has already been done.
For this reason, it matters not that there is a new commissioner who never manifested the bias of the previous one.13 The mere substitution of a name in the caption of this case does not negate what the previous Commissioner and the Department did to Sherman; nor can it revitalize the Department’s action against Sherman. There is simply no other way to give Sherman relief from the harm he has already suffered than by granting a permanent injunction against any further proceedings against him.
Accordingly, I would deny the Department’s Petition to Open or Vacate the October 27, 1994 single-judge order of this court granting summary relief and permanently enjoining the Department from taking action against Sherman.
. Section 213 of The Administrative Code of 1929 (Administrative Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 73, states in pertinent part:
The Governor shall appoint ... deputy heads of administrative departments ... who may, at any time, exercise such of the powers and perform such of the duties of the head of his department as may be prescribed by the head of his department: Provided, however, That any such deputy shall not have the right to exercise any power or perform any duty which the Constitution of the Commonwealth of Pennsylvania requires the head of his department personally to exercise or perform.
. The Majority asserts that even if everyone in the Department was biased against Sherman because of the Commissioner’s prejudgment of Sherman, the adjudication would nevertheless have to go forward under the Rule of Necessity, a common law principle requiring that a judge with a personal interest in a case must hear the case if it cannot be heard otherwise. (See Majority op. at 227-28.) However, our Supreme Court in Dussia did not rely on the Rule of Necessity to fashion a remedy, and I would not do so here.
. Act of July 22, 1974, P.L. 589, as amended, 40 P.S. §§ 1171.1-1171.15.
. Section 1171.8(e) of the UIPA, 40 P.S. § 1171.8(e) (emphasis added), states:
(e) Following the hearing, the Commissioner shall issue a written order ... [and] shall send a copy of the order to those persons participating in the hearing.
Section 711(b)(2) of the Administrative Code, 71 P.S. § 251(b)(2) (emphasis added), considered by our Supreme Court in Dussia, states in pertinent part:
A written notice of any decision of the commissioner ... shall be sent ... to the enlisted member ... after the hearing is actually concluded.
Based on the language in Section 711 of the Administrative Code, the Court in Dussia determined that the commissioner could not relinquish the role of ultimate adjudicator. Certainly the language in Section 1171.8 of the UIPA is equally strong, if not stronger, in requiring that the Commissioner ultimately decide cases under the UIPA.
.The regulation provided, in part, as follows:
1. A Disciplinary Board ... shall be appointed by the [Police Commissioner] to review recommendations for Court-Martial_
2. The Board shall convene at the direction of the [Police Commissioner] and shall be responsible to him for conducting an objective review of all cases that he may refer to it.
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4. The Board shall function in an advisory capacity only.
Dussia, 466 Pa. at 161, 351 A.2d at 672 (emphasis in original).
. Unfortunately, the Commissioner realized too late that she needed to erect a wall between herself and the ultimate adjudicator to avoid the appearance of bias.
. In O'Neil v. American Fire Ins. Co., 166 Pa. 72, 78, 30 A. 943, 944 (1895), our Supreme Court considered the constitutionality of the delegation of legislative authority to the commissioner and stated: “The question is not, therefore, one of power over the subject, but of the manner in which the conceded power must be exercised.” Likewise, here, even if the Commissioner’s ultimate adjudicatory power was a proper subject for delegation, there is still the question of the manner in which the deputy must exercise it.
. Of course, the problem here is not the mere appearance of impropriety; rather, it is the actual bias created by the Commissioner’s prejudgment of Sherman. In Stone and Edwards, this court stated:
To determine whether there has been a violation of a person’s right to due process, what is examined is not the process that is purportedly authorized, but instead, it is the process that the person is actually going to receive.
Stone and Edwards, 161 Pa.Commonwealth Ct. at 188-89, 636 A.2d at 299.
.The Code of Judicial Conduct states:
Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code....
Code of Judicial Conduct (see paragraph entitled "Compliance with the Code of Judicial Conduct”). Because the Commissioner is an officer of a judicial system performing judicial functions, the Code of Judicial Conduct is applicable to her.
.Our Supreme Court has addressed the seriousness of this question in Reilly by Reilly v. SEPTA, 507 Pa. 204, 224, 489 A.2d 1291, 1301 (1985):
Questions concerning the fairness, impartiality, or bias of the trial court always affect the administration of justice and can cloak the whole system of judicature with suspicion and distrust. Because recusal requests call into question our ability to mediate fairly, they raise important issues in which the public is concerned. If our courts are perceived to be unfair and biased, our future ability to adjudicate the public’s grievances and wrongs will be threatened, because we all lose the one thing that brings litigants into our halls of justice— their trust. Without the people’s trust that our decisions are made without ... bias ..., our whole system of judicature will crumble.
. "One man's justice is another’s injustice." Ralph Waldo Emerson, Circles (1841).
. Cf. Deuteronomy 25:2-3, which states:
[I]f the guilty man deserves to be beaten, the judge shall cause him to lie down and be beaten in his presence with a number of stripes in proportion to his offense. Forty stripes may be given him, but not more; lest, if one should go on to beat him with more stripes than these, your brother be degraded in your sight.
. In fact, it is only an accident that this proceeding coincided with an election year and, consequently, the appointment of a new commissioner.