dissenting.
I respectfully dissent.
The majority identifies two general issues for review by this court: (1) whether sections 7, 8 and 9 of the UIPA, vesting both prosecu-torial and adjudicative functions within the Commissioner by authorizing her to investigate and initiate proceedings against insurance agents for alleged violations of the UIPA, adjudicate those charges and administer remedial action, are unconstitutional because they allow for impermissible commingling; and (2) whether the Department can properly “hold” Petitioners’ license applications on the basis of alleged “unworthiness.” In deciding the first of these issues, the majority concludes that although the “walls of division” necessary to prevent comming*305ling of prosecutorial and adjudicatory functions appear to have been breached by sections 7, 8 and 9 of the UIPA, the Department implemented those provisions in such a way that there is no actual commingling. With respect to the second issue, the majority concludes that the Department has no non-discretionary duty under section 603 of the Act to issue licenses to previously licensed agents wishing to represent additional companies. Moreover, the majority holds that applicants seeking to represent additional insurance companies do not have a protected property interest in those licenses and, thus, Petitioners cannot establish a due process violation where the Department “held” their license applications. I disagree with the majority’s analysis on these points.
Based on clear statutory language, Petitioners contend that the procedure set forth in sections 7, 8 and 9 of the UIPA gives rise to actual or apparent bias by permitting the commingling of prosecutorial and adjudicative functions. Contrary to the majority here, I would agree.
Because the Department’s Commissioner, either alone or through delegation to subordinates, commingles the investigative, enforcement, prosecutorial and adjudicative functions in the licensing proceedings, I would hold that Petitioners’ due process rights have been violated. Here, the Commissioner, through Buzby, her deputy commissioner,1 initiated enforcement proceedings against Petitioners by requesting the legal department to issue an order to show cause and/or to suspend or revoke the existing licenses. Such delegation does not mean that the Commissioner has relinquished her ultimate responsibility for this action.2 Furthermore, the Commissioner, through her appointed hearing officer, held hearings and adjudicated the charges initiated against Petitioners.
The Department argues that the adjudicative portion of the proceeding is significantly isolated from the prosecutorial functions by the actions of the hearing officer, Laura Plumley.3 The Commissioner delegates a portion of her adjudicative responsibility to Plumley, who presides over departmental hearings and makes recommendations to the Commissioner. The Department asserts that because Plumley, a “neutral and detached” party, acts as hearing officer and arrives at an independent recommendation regarding the outcome of the proceedings, those proceedings have not been tainted by commingling the prosecutorial and adjudicatory functions solely within the Commissioner.
However, this argument fails to recognize that the prescribed statutory scheme clearly dictates that the Commissioner shall have final authority in all phases of the proceedings. As the language of the statutes indicates, the duties required by the statutory scheme begin and end with the Commissioner. Although Plumley may conduct the hearing, at the Commissioner’s request, and may advise the Commissioner regarding the appropriate adjudication, the Commissioner retains the ultimate decision making power.4 *306Inserting Plumley into the administrative procedural morass does not diminish or enhance the Commissioner’s prescribed duties as both prosecutor and adjudicator.
Thus, because both prosecutorial and adjudicatory functions are commingled within a single individual, the Commissioner, the proceeding is constitutionally infirm. Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975). The Commissioner has the statutory and ultimate responsibility for all acts which the Commissioner delegates to deputies as part of their investigative or prosecutorial duties. Likewise, the Commissioner is the final adjudicator of hearings conducted by Laura Plumley. There must be a constitutional buffer between the Commissioner as prosecutor and the Commissioner as adjudicator. Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992). This buffer must be in the nature of a wholly separate and independent investigative and prosecutorial entity, acting without interference from the Commissioner. As the Pennsylvania Supreme Court stated: “Such a commingling of prosecutorial and adjudicatory functions in one individual offends fundamental notions of due process and is constitutionally impermissible.” Lyness at 545, 605 A.2d at 1209, quoting Commonwealth, Department of Insurance v. American Bankers Insurance, 478 Pa. 532, 534, 387 A.2d 449, 450 (1978)).
I recognize that a strong presumption exists in favor of the constitutionality of an act of the legislature and the burden lies heavily upon one challenging the act to show that it clearly, palpably and plainly violated the Constitution. Appleton Papers, Inc. v. Commonwealth of Pennsylvania, Department of Labor and Industry, 90 Pa.Commonwealth Ct. 399, 495 A.2d 662 (1985). However, because these statutory procedures obviously allow for the impermissible commingling of prosecutorial and adjudicatory roles in the Commissioner, the statutes themselves “clearly, palpably and plainly” violate the due process guaranty afforded by the Pennsylvania Constitution as interpreted by the Pennsylvania Supreme Court. As to its application here, I believe that the requisite “walls of division” have not been erected and so would hold sections 7, 8 and 9 of the UIPA unconstitutional as applied to Petitioners in the licensing proceeding.5
As to the second issue, the majority contends that section 603 of the Act does not require the Department, upon application, to issue additional licenses to existing license holders. Once again, I would disagree.
An understanding- of the licensing process supports my position. Before they can sell insurance in the Commonwealth of Pennsylvania, prospective insurance agents must make application to the Commissioner. Initially, the agent is required to pass an examination to show familiarity with the insurance laws, the results of which can be retained for five years. In addition, the license candidate must supply an endorsement from the company with which he desires to do business to the effect that he has a good business reputation and is worthy of licensure. 31 Pa.Code § 33.21. In order to be issued a new license pursuant to section 603 of the Insurance Department Act (Act),6 the Commissioner must find an applicant “worthy of licensure.” Although the agent may have several existing licenses, the agent must submit a new license application for each new company the agent wishes to represent. The Department has testified that there are no published standards for worthiness and that this decision is purely discretionary on the part of the Department. The Department also testified that this “worthiness” determination is made each time the licensee applies for a new *307license.7
Although it lacks specific standards for determining “worthiness” to grant a new or additional license, the Department admitted that published standards for worthiness exist which apply to the revocation or suspension of a license. The standards are provided for in 31 Pa.Code § 33.7 and § 33.18. Section 33.7 states, in pertinent part:
(а) The Department may deny an application for agent’s or broker’s license if any of the following are shown to have occurred:
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(3) In the case of a firm or corporate license applicant, where an active or inactive member of such firm or corporation is not eligible for individual license.
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(б) The applicant has violated any section of the Commonwealth insurance laws for which violation the insurance commissioner has the authority to revoke, suspend, or refuse to renew any insurance license then in force.
Section 33.18 provides:
(a) The Department may revoke, suspend or refuse to renew the license of any agent or broker upon finding after a hearing that such agent or broker has engaged in conduct which would disqualify him from initial issuance of a license. Such conduct includes the indicated bases for initial denial of a license provided in § 33.7 of this Title....
However, section 33.23(f) states:
(f) If the company’s request for the termination of a license in any way reflects upon the worthiness of the agent, it shall be filed in duplicate. The duplicate copy shall be sent to the agency by the Department. In the absence of valid exception taken to the information and sustained by the agent, the Department will set up a “stop” against any new licenses, either as agent or broker, but without prejudice to licenses in force at time of such termination.
Thus, according to the Department, it is possible for an applicant to be unworthy for a new license while being worthy to hold his current license. In this case, as long as the enforcement action is pending against Petitioners, the Department will deem them “unworthy” for a new licensure but seemingly concede their “worthiness” to retain existing licenses. I disagree with this reasoning.
The Department defends this practice by arguing that it would be unfair to consumers for the Department to be issuing “new” licenses to a party under investigation, because if the party is found to have violated Department regulations with regard to existing licenses and is later determined to be unworthy, then proceedings would have to be instituted to revoke or suspend the newly issued licenses. As a result, the Department contends that until the enforcement proceedings are concluded, all “new” license applications are put on “hold.” I cannot accept this justification; obviously, once the licensee is adjudicated “unworthy” by the Department, all existing licenses, whether they are newly issued or not, could be revoked in one proceeding. I believe that an agent or broker who holds a license to do business is deemed worthy by the grant of that license. Until that agent or broker is adjudicated as unworthy by the Department, he should not be denied a new license.
The majority also concludes that Petitioners have not demonstrated that any property right was impinged by the Commissioner and, therefore, that their due process rights were not violated by the “holding” of their license applications. On the contrary, I believe that Petitioners establish a right to due process in this case. In order for due process protection to apply here, Petitioners must demonstrate a substantial property interest. Lyness. The Department concedes that existing licenses create a property interest requiring due process protection; however, it contends that these same protections do *308not apply to licenses not yet issued. Replogle v. Liquor Control Board, 95 Pa.Commonwealth Ct. 614, 506 A.2d 499 (1986), aff'd, 514 Pa. 209, 523 A.2d 327 (1987). The Department argues that because Stone and Edwards is seeking additional licenses and Emerson Lightner is applying for a new individual license, they cannot claim due process protection. (Transcript of October 16, 1992 at 27). I might agree if the line between new and existing licenses were as clear in this case as the Department contends. However, where a notice of challenge to an existing license acts to hold up new applications and puts companies on notice that a question of an agent’s worthiness has been raised, which may affect contract renewal of licenses as yet unsuspended, the agent or broker has been effectively deprived of the right to earn a livelihood.8 Therefore, I would conclude that Petitioners’ new license applications are inextricably interwoven with their existing licenses and merit due process protection; that is, a hearing prior to the denial of or interference with the grant of such a license.
The unique circumstances which exist in the insurance industry prevent me from separating the old and new licenses. Because individual insurance companies do not handle all categories of insurance, the agent or broker must be licensed to sell insurance with many separate companies in order to offer a range of policies, such as fire, life, casualty and accident. It is impossible for an agent or broker to sustain a livelihood in the insurance industry unless the agent is free to write policies with any or all companies; therefore, the ability to hold unlimited licenses is essential to the livelihood of the agent or broker. Once licensed, unless that license is subsequently and properly suspended or revoked, an agent must be permitted to pursue his livelihood without interference. Accordingly, the Department cannot deprive a previously licensed agent or broker of the unfettered right to pursue his chosen livelihood by acquiring additional licenses without first affording due process.9 Government *309may not arbitrarily deny an individual opportunity to engage in a chosen private profession. “Due process demands that an individual whose livelihood is threatened by administrative action be given notice and a hearing to fairly rebut the evidence against him. Particularly should this be so in cases where the action of the administrative body, as regulator of qualifications for an entire field of private employment, may entirely foreclose an individual from employment opportunities.” Birkenfeld v. United States, 369 F.2d 491, 493-94 (1966).
Emerson Lightner has sixty-three current licenses to sell insurance within the Commonwealth of Pennsylvania through Stone & Edwards. As to his individual license application, Lightner testified that because he has retired from the company, he no longer desires to write policies as an agent of Stone & Edwards where he would have to divide the commission between the insurance company and himself. Emerson Lightner stated that if he had the individual license for which he applied, he would be able to retain the entire commission for all new business that he generates. Thus, Emerson Lightner’s income is directly and adversely affected by the denial of a new license. I see no rational basis for distinguishing between Emerson Lightner’s continued worthiness to write policies through Stone & Edwards and the Department’s assessment of Emerson Lightner’s unworthiness, as an officer of Stone & Edwards, to obtain an individual license to write the identical policies. In either case, Emerson Lightner performs the same function and bears the same responsibilities. The only difference is that as an individual license holder, Emerson Lightner would receive 100% of the commission on premiums paid, whereas, as an agent of Stone & Edwards, he would have to share those commissions with the company. So long as the premiums charged meet the statutory guidelines, the Department has no duty or discretion to allocate the profits on sales of insurance policies.
Petitioners’ right to earn a living supports an acknowledged, substantial property interest in their existing licenses. Because this same interest is unavoidably affected by the acquisition of additional licenses, I would conclude that the two are inextricably interwoven and cannot be artificially distinguished. “[T]he right to pursue a livelihood or profession” triggers the “protective mechanism of procedural due process.” Lyness, 529 Pa. at 540, 605 A.2d at 1207.
“[T]he basic elements of procedural due process are adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction of the case.” Lyness, 529 Pa. at 542, 605 A.2d at 1207 (quoting Commonwealth v. Thompson, 444 Pa. 312, 316, 281 A.2d 856, 858 (1971)). However, Petitioners here did not receive adequate notice of the pending charges nor were they offered a timely hearing by the Department on the challenge to their new licenses; therefore, they were denied the first two elements of due process.
In Lyness, our Supreme Court addressed the third prong of due process, holding that the objectivity required by a fair and impartial tribunal could not exist where a single body acted as both prosecutor and adjudicator in the same proceedings and that, therefore, due process protections prohibit the commingling of these functions. Reasoning that due process is applicable to the right to pursue a livelihood or practice a profession, the Court explained:
In determining what process is due Pennsylvania citizens, this Court has established a clear path when it comes to commingling prosecutorial and adjudicatory functions. There is a strong notion under the Pennsylvania law that even an appearance of bias and partiality must be viewed with deep skepticism, in a system which guarantees due process to each citizen.
Id. 529 Pa. at 542, 605 A.2d at 1207 (emphasis in original). Additionally, in Dussia, then Justice, now Chief Justice Nix stated:
The decision to institute a prosecution is such a fundamental prosecutorial function that it alone justifies concluding a dual capacity where the individual also is charged with the responsibility of making *310the ultimate determination of guilt or innocence.
Dussia, 466 Pa. at 165, 351 A.2d at 674.
I would hold that a licensed agent or broker is entitled to the protections of due process in the acquisition of additional licenses as well as the retention of existing licenses. That was not provided to Petitioners here. Moreover, in proceedings against the Petitioners, the Commissioners’ prosecutorial and adjudicatory functions were impermissi-bly commingled.
Accordingly, because I believe that Petitioners were denied all three elements of due process, I must dissent.
. Respondent Thomas S. Buzby (Buzby) is a Deputy Insurance Commissioner for the Commonwealth of Pennsylvania, for Consumer Services, Enforcement and Program Service and reports directly to the Commissioner. Buzby is responsible for enforcement actions against licensees and settlements.
. The majority implies that this delegation divests the Commissioner of responsibility and, thereby, creates the requisite “wall of division.” However, this is' simply not the case because under the statutory scheme here, all of the dele-gable actions of the Commissioner remain her sole statutory duty.
. Respondent Plumley is an attorney in the Insurance Department Administrative Hearings Office, appointed by the Commissioner. Plumley presides over Department Hearings involving alleged violations of the insurance laws of Pennsylvania.
.In testimony, Plumley stated that although she does not make the final adjudication, she provides the Commissioner with a recommended decision and advice which, if not objected to by the Commissioner, becomes the Commissioner’s final adjudication. Plumley testified:
Q. What is your relationship with the Commissioner with respect to proceedings once you have held a hearing and drafted the proposed adjudication?
A. It’s the draft adjudication in the entirety of the docket,.... [It is] taken with a cover memo, ... and is forwarded to the Commissioner for her review. It will come back to me either signed or with notes please see me and *306advise me or I don’t like this, change it or whatever comments she wishes to make, and I will give her advice if she calls me up to discuss the matter with her. Basically I will modify the proposed adjudication as she directs, or if she doesn't, if she signs it as it goes up, then it will be issued by the docket clerk.
(Transcript of October 29, 1992 at 59.)
. Because the challenged licensing regulations, at 31 Pa.Code §§ 33.7, 33.18 and 33.21, are dependent upon the constitutionality of UIPA sections 7, 8 and 9, they are also constitutionally infirm as applied to Petitioners.
. Act of May 17, 1921, P.L. 789, as amended, 40 P.S. § 233.
. Stone & Edwards has never been denied a license application nor been determined to be unworthy of a license pursuant to section 603 of the Act. Prior to the denial of the license in this case, Emerson Lightner, who has been lawfully writing insurance for various companies since 1946, has never been determined to be unworthy under section 603. Additionally, Gary Lightner, an agent for various companies since 1986, has never been denied a license application nor been determined as unworthy of a license under this section.
. Here, the challenge to Emerson Lightner’s worthiness was made a matter of public record through publication in the Pennsylvania Bulletin. (May 15, 1992 edition at 18). Emerson Lightner himself was made aware of this notice when a company with which he currently does business inquired about the problem. Clearly then, the Pennsylvania Bulletin notice adversely affected Emerson Lightner’s business reputation, as he testified:
Q Because of the matter in the Pennsylvania Bulletin that was brought to your attention, have other people brought to your attention these proceedings that are pending in the Insurance Department, other customers particularly?
A A number of them. Many.
Q A number of them?
A Yes.
Q What is the nature of their statements to you?
A It’s a cloud of uncertainty. Because of the accusation, there is an uneasy feeling, which you can immediately detect, and of course, the questions kind of skirt around the edges of that. But it's very disheartening.
Q Are you able to tell the Court what effect, if any, these proceedings have had upon your own personal business and as an officer of Stone and Edwards Insurance Agency?
A It's had a very detrimental effect. Very, very much so.
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Q Except for these proceedings about which you were first formally notified on January 29, 1992, has your license, in the 46 years, ever been revoked or suspended or renewals denied by the Insurance Department?
A No, sir.
(Transcript of October 29, 1992 at 28-30).
. Nevertheless, the Insurance Department claims to have the right to put new licenses on hold because of its duty to protect unwary citizens seeking to buy insurance coverage. I suspect the Insurance Department’s overriding desire to fulfill its duty to protect Pennsylvania citizens is overstated. I note that in this case, a letter was sent to Stone & Edwards stating that payment of $107,000.00, the alleged overcharged amount, would resolve the matter. I find this ironic in light of the fact that Stone & Edwards has refused to pay because it claims to have committed no wrongdoing; however, by paying the alleged overcharge, thereby conceding the violation, its worthiness would be restored.
I am not suggesting that the practice is uncommon, nor that it does not serve the interest of judicial economy. In fact, this device is used even where criminal acts are charged, although not where the public interest would be jeopardized. See Pennsylvania Rule of Criminal Procedure No. 314. However, I do believe that the Insurance Department cannot claim that its “hold” on Petitioners’ license applications acts to protect our citizens when the mere exchange of money for alleged unworthy acts would absolve them from this label. (Transcript of October 29, 1992 at 155-160).