Stone & Edwards Insurance Agency, Inc. v. Department of Insurance

636 A.2d 293, 161 Pa. Commw. 177, 1994 Pa. Commw. LEXIS 2

Opinions

PELLEGRINI, Judge.

Before this court are cross-motions for summary judgment questioning whether the Unfair Insurance Practices Act (UIPA)¹ is unconstitutional because it permits commingling of prosecutorial and adjudicative fune-tions in the office of Insurance Commissioner (Commissioner), and whether the Insurance Department’s (Department) placing of ad-mimstrative “holds” on an agent s appliea-tions is improper,

T

Stone & Edwards Insurance Agency, Inc. (Stone & Edwards) is a licensed corporation authorized to sell insurance² within the Commonwealth. Both Emerson Lightner and Gary Lightner (collectively, with Stone & Edwards, Petitioners) are licensed agents affiliated with Stone & Edwards.³

In February, 1988, the Department began investigating allegations of insurance law violations made against the Petitioners. As a result of the investigation, the Department determined $107,000 in premiums collected by Stone & Edwards to be unlawful, and in the summer of 1990, demanded that restitution be made. Stone & Edwards denied any impropriety and refused.

The Department, through the Deputy Insurance Commissioner for Consumer Service Enforcement and Program Services (Deputy Commissioner-Enforcement), commenced an enforcement action, P-91-10-35 (enforcement proceeding), seeking to have the existing licenses of Gary and Emerson Lightner revoked. The Lightners answered and requested a hearing. The Office of Hearing Appeals then appointed a hearing officer to take testimony and make a recommendation to the Commissioner pursuant to 31 Pa.Code § 56.1 and 1 Pa.Code §§ 35.123, 35.187.

While their investigation into Petitioners’ business practices was ongoing but before the enforcement proceeding was instituted by the Department, two insurance companies, Colony Life Insurance Company (Colony) and Aetna Life Insurance & Annuity Company (Aetna) applied to have Emerson Lightner licensed as their agent.⁴ The Department advised both Aetna and Colony that no new licenses would be issued for Emerson Lightner until the investigation of Stone & Edwards was resolved. No notice, however, of the “holds” on license applications was given to Emerson Lightner.

The day after the Department commenced the enforcement proceeding, it lifted the “hold” and denied the Colony and Aetna applications to have Emerson Lightner appointed their agent. The reason for this denial was that the Department considered Emerson Lightner to be “unworthy” for additional licenses based upon the underlying facts of the enforcement proceeding. Emerson Lightner appealed the denial (P92-03-06 (license appeal)). Because the issues in the two proceedings were similar, the Insurance Commissioner appointed the same hearing officer to hear the license appeal and the proceedings were consolidated for hearing. On October 16, 1992, the Department placed “holds” on any new license applications by either Gary or Emerson Lightner and Stone & Edwards pending disposition of the enforcement proceeding.⁵

Before any hearings were held on the enforcement proceeding and license appeal, Petitioners filed two petitions for review. The first was a complaint for declaratory judgment and request for injunctive relief (No. 216 M.D.1992) seeking to have Section 506 of the Administrative Code of 1929⁶ and Section 102(a) of the Administrative Agency Law⁷ declared unconstitutional because facially, those provisions permit an impermissible commingling of prosecutorial and adjudicative functions within the Insurance Department.⁸ The second petition (No. 317 M.D. 1992) sought to have Sections 7, 8 and 9 of UIPA declared unconstitutional also for impermissible commingling, as well as seeking a mandamus to have the Department issue the “held” licenses.⁹

Following the Department’s answers and the close of the pleadings, both parties filed motions for summary judgment,¹⁰ agreeing that the disposition of this matter turns strictly on questions of law.¹¹ The cross-motion presents two general issues: 1) whether a statute which on its face vests both prosecutorial and adjudicative functions is unconstitutional because it purportedly permits impermissible commingling; and 2) whether the Department’s holding of Petitioners’ license applications pending the outcome of the enforcement action against Petitioners is unlawful.

II.

Article I, Sections 1, 9 and 11 of the Pennsylvania Constitution¹² give to the people of Pennsylvania the right to due process guaranteeing those appearing in any judicial or administrative tribunal the right to a fair and impartial hearing. While the rights protected under those Articles and the rights guaranteed under the Fourteenth Amendment are substantially coextensive, the Pennsylvania due process rights are more expansive in that, unlike under the Fourteenth Amendment, a violation of due process occurs, even if no prejudice is shown, when the same entity or individual participates in both the prosecutorial and adjudicatory aspects of a proceeding. Compare Lyness v. State Board of Medical Examiners, 529 Pa. 535, 605 A.2d 1204 (1992) with Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Petitioners contend that their right to a fair hearing under the Pennsylvania Constitution is being denied because of the appearance of impermissible commingling by the purported vesting by UIPA of prosecuto-rial and adjudicatory functions to investigate unlawful insurance practices in the Insurance Commissioner.

Impermissible commingling exists within an administrative agency when the prosecutorial and administrative functions are not adequately separated. Lyness, supra; Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975). Due process rights not only can be violated when there is actual commingling, but even when an appearance that commingling of functions may have taken place within the agency exists. As our Supreme Court stated in Lyness:

Whether or not actual bias existed as a result of the board acting as both prosecutor and judge is inconsequential; the potential bias and the appearance of non-objectivity is sufficient to create a fatal defect under the Pennsylvania Constitution.

Id. 529 Pa. at 548, 605 A.2d at 1210 (citations omitted). See also Copeland v. Township of Newtown, 147 Pa.Commonwealth Ct. 463, 608 A.2d 601 (1992). However, a single administrative agency may exercise both prose-cutorial and adjudicative functions if “walls of division” are constructed within an agency that clearly separates those two functions. Lyness 529 Pa. at 546, 605 A.2d at 1209.¹³

The “walls of division” necessary to prevent commingling appears to have been breached by Sections 7,¹⁴ 8¹⁵ and 9¹⁶ of UIPA¹⁷ by authorizing the Insurance Commissioner to both prosecute (allowing her to examine and investigate insurance agents and initiate proceedings against those agents for alleged violations of UIPA), and then adjudicate by holding hearings on the charges, determining the charged individual’s liability and administering the remedial action. However, it must be remembered that UIPA is no different than most regulatory statutes that provide that a single entity, a board or a person, has the power to investigate, prosecute and adjudicate violations of the statutes they are charged to enforce.

Like most statutes that appear to facially allow commingling¹⁸, UIPA has been implemented by the Department so that there is no commingling of prosecutorial and adjudicatory functions. Especially since Lyness, regulatory agencies have established “walls of division” between those performing prose-cutorial and those performing adjudicatory functions. In implementing UIPA, the Commissioner has delegated all prosecutorial functions to the Deputy Commisioner — Enforcement, who is ultimately responsible for the initiation of UIPA prosecutions.¹⁹ In deciding whether to initiate an enforcement action under UIPA, the Deputy Commissioner has no interaction with the office of the Commissioner nor with the Office of Administrative Hearings, the Commissioner’s adjudicative arm.²⁰ Department procedures dic tate that the prosecutorial functions performed by the Deputy Commissioner — Enforcement remain outside the Commissioner’s purview.²¹ The uncontroverted evidence establishes that in practice, a wall of division between the Commissioner, the adjudicator, and that of the Deputy Commissioner — Enforcement, the prosecutor, exists with regard to prosecutions under UIPA, and there is no impermissible commingling.

Not challenging that there is indeed a “wall of division” between the adjudicatory and prosecutorial functions within the Department, Petitioners contend that it is insufficient to merely provide them with due process in practice. They contend that because UIPA facially permits an unconstitutional commingling of the prosecutorial and adjudicatory functions in the Commissioner, that alone deprives them of a right to the appearance of a fair and impartial hearing concerning the charges lodged against them. Simply, they contend that they are not only entitled to a fair and impartial hearing, but also a statute that specifically establishes a procedure that on its face guarantees a fair and impartial hearing. Because UIPA does not facially guarantee a fair and impartial hearing, they contend it is unconstitutional and the enforcement proceeding brought against them cannot be maintained. Moreover, because the enforcement action would then be dismissed, Petitioners also contend that they are entitled as a matter of law to requested additional licenses to serve as agents for additional insurance carriers.

Notwithstanding that UIPA may be implemented in a manner that would allow commingling to occur, that alone does not constitute a violation of an applicant’s rights to due process. 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. In addressing a similar facial challenge to a statute which purportedly failed to protect the due process rights of a federal judge being disciplined, the United States Court of Appeals for the District of Columbia, in two decisions, held that it is the due process received or are going to be received rather than the due process one claims the statute provides that is examined to determine whether there was a constitutional violation. In Hastings v. Judicial Conference of the United States, 770 F.2d 1093 (D.C.Cir.1985) (Hastings I), the court held that the District Court could not determine whether a statute on its face denied due process because the issue was not “ripe”. The court held that the issue was not ripe for determination because the judge facing discipline might receive all the process he was due depending on how the statute had been implemented. Id. at 1101. After the hearing had been held, in Hastings v. Judicial Conference of the United States, 829 F.2d 91 (D.C.Cir.1987) CHastings II), the court held that a facial challenge to the statute was inappropriate because it was the process that the judge received at the hearing rather than what the statute provided that determined whether due process was violated. In Rafeedie v. Immigration and Naturalization Service, 880 F.2d 506 (D.C.Cir.1988), the court stated that the lesson of the Hastings cycle is that “[if] there is a reasonable possibility that the Government will grant as much process that a reviewing court might interpret the relevant statute to require, a pre-enforcement statute challenge will be generally inappropriate.” 880 F.2d at 514.

The courts of this Commonwealth, while not addressing this issue squarely, have inferentially been in accord with the principle that due process is to be determined by the hearing received and not what a statute facially purports to provide. For example, in Lyness, even though the Medical Practice Act of 1974 facially permitted commingling,²² the Supreme Court did not dismiss the prosecution but merely remanded the proceeding back to the Board to provide a due process hearing.²³

In this case, there is more than a realistic chance that Petitioners will receive a due process hearing because there are the “walls of division” in place that will guarantee that there is no commingling of prosecutorial and adjudicatory functions entrusted to the Department. Nor is there a due process violation just because of the possibility that the statute may be interpreted so that there is an appearance of commingling. The “appearance of commingling” is again the appearance of the process applied, not some other procedure purportedly authorized but never given effect. Because the process that Petitioners will receive meets all the requirements of due process, their constitutional right to a fair and impartial hearing has not been violated.

III.

Petitioners contend that they are entitled as a matter of law to have their licenses to serve as agents for Colony and Aetna issued because they did not receive the pre-denial hearing required by 31 Pa.Code § 33.-18, which provides:

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....

31 Pa.Code § 33.18.

Petitioners contend that because the denial of the Aetna and Colony license applications was based solely on the as yet unproven allegations in the enforcement proceeding, the regulation requires a hearing prior to the initial determination to deny the license. They contend the hearing is necessary to determine the validity of those allegations and the applicant’s “worthiness” to receive additional licenses. Because no hearing was held prior to the denial, Petitioners then contend that they are entitled to have the licenses issued. The Department, however, contends that the initial decision to deny a license is not the one referred to in the regulation, but the ultimate action taken by the Commissioner that is only made after a hearing is held.

Petitioners claim to a hearing prior to the initial determination is not maintainable because it does not apply to the initial decision to deny a license application. The initial decision to deny a license application is a staff function made by the Department’s Bureau of Agents and Brokers. 31 Pa.Code § 33.21. It informs the applicant of the reason the license is being denied. From this initial determination, an aggrieved applicant may appeal to the Commissioner who makes the determination for the Department as to whether to grant a license. 1 Pa.Code § 35.-20. The Commissioner, as the Department’s adjudicator, is then required to hold a hearing on the applicant’s worthiness to be issued additional licenses. 31 Pa.Code § 33.18. Consequently, an applicant always receives a hearing as required by the regulations before the Department decides to deny the license.²⁴

Because 31 Pa.Code § 33.18 does not require a hearing before the staff determination is made to deny the licenses, Petitioners’ request for an order granting summary judgment is denied. Correspondingly, the Department’s request for summary judgment declaring that its actions were in accord with its own regulations is granted.²⁵

IV.

Even if they are not entitled to have the enforcement proceeding against them dismissed because of the purported facial commingling of prosecutorial and adjudicative powers under UIPA, Petitioners contend that they are still entitled to be issued licenses to represent new insurance carriers. As existing licensees, they contend that the Department has a non-discretionary duty under the Act to issue additional licenses without making a determination as to “worthiness” and the Department’s holding of their applications is improper and a violation of their due process rights. Specifically, Petitioners contend that they are entitled to a mandamus because:

• unless they have been previously found to be “unworthy” to sell insurance, the Department has a non-discretionary duty to issue licenses under Section 603 of the Act to serve as agents for additional companies once application is made.

•they are entitled to have the licenses applied for issued because the hold on their license applications without notice or hearing was an unconstitutional denial of due process.

• the decision to hold their license applications was an adjudication under the Administrative Agency Law, 2 Pa.C.S. § 101, that was invalid because they were not afforded either notice or hearing before the holds were instituted.

• once it has completed its investigation into their “worthiness”, the Department cannot avoid acting on their license applications by holding them.

For Petitioners to prevail in mandamus, they must establish that issuance of a license is a ministerial act or mandatory duty on the part of the Commissioner and there is a lack of any other adequate remedy. Equitable Gas Co. v. City of Pittsburgh, 507 Pa. 53, 488 A.2d 270 (1985).

A.

Petitioners contend that pursuant to Section 603 of the Act,²⁶ the Department has a non-discretionary duty to issue licenses to existing license holders wishing to represent additional insurance companies once application is made. Section 603 provides:

The Insurance Commissioner may issue, upon certification as aforesaid by any company ... authorized by law to transact business within this Commonwealth, an agent’s license to any person of at least eighteen years of age and to any copart-nership or corporation_ When the Insurance Commissioner is satisfied that the applicant is worthy of license, and that he is reasonably familiar with the provisions of the insurance law of this Commonwealth, he shall issue a license stating that the company ... represented by the agent has complied with the requirements of the law and has been authorized by the Insurance Commissioner to transact business within this Commonwealth ...: Provided, That any applicant who shall have held, for any period during the five years immediately preceding the application, a license to transact, as agent, any class or kind of insurance business ..., shall be entitled, upon proper application, to receive a license ... without the necessity of submitting to an examination.

40 P.S. § 233(a) (repealed 1992) (emphasis added). Contrary to Petitioners’ contention, however, a plain reading of Section 603 does not require the Commissioner automatically to issue agents a license to represent addi tional companies upon application. While it excuses an agent from submitting to an exam if he or she has been licensed to represent other companies in the previous five years, Section 603, by its very terms, requires that additional licenses be issued only “when the Insurance Commissioner is satisfied that the applicant is worthy of license”.²⁷ In construing this Section, we have held that whether an applicant is “worthy” of licensure is a discretionary determination to be made by the Commissioner. Fumo v. Insurance Department, 58 Pa.Commonwealth Ct. 392, 427 A.2d 1259 (1981). Because Section 603 requires a determination of “worthiness” for every license application, mandamus will not lie to compel the issuance of Petitioners’ requested licenses and summary judgment on that basis is denied. Accord, Pennsylvania Dental Association v. Commonwealth of Pennsylvania Insurance Department, 512 Pa. 217, 516 A.2d 647 (1986).

B.

As to whether any due process rights were violated by the Department’s “holding” of Petitioners’ license applications without notice or hearing, Petitioners must demonstrate that they have a property right which has been impinged upon by the Commissioner.²⁸ Our holding that licenses to represent additional insurance companies are contingent on the Commissioner finding the applicant “worthy” means that nothing in Section 603 entitles an applicant with a property right to a license to be an agent for an additional insurance company. Without an entitlement, the license applicant has no protected property interest in a license because it does not yet exist. See Appeal of Carlson, 152 Pa.Commonwealth Ct. 285, 618 A.2d 1206 (1992) (applicant for position on township police force has no property interest in remaining on eligibility list); Pittenger v. Department of State, 142 Pa.Commonwealth Ct. 57, 596 A.2d 1227 (1991) (no property interest in application to reinstate previously revoked medical license). Because no property rights of an applicant seeking to represent additional insurance companies have been impinged, Petitioners cannot establish any due process right was violated solely because the Department “held” their license applications.

C.

Even if they do not have a property right in their license applications, Petitioners argue that they are nonetheless entitled to summary judgment because the decision to “hold” applications itself constitutes an adjudication. If the decision to hold their license applications was an adjudication, then Petitioners reason that they were entitled to a hearing under the Administrative Agency Law prior to the implementation of that decision which they did not receive.²⁹ As a result of that reasoning, they then contend that they are therefore entitled to an order directing the Department to issue the held license applications. We disagree for several reasons.

To be entitled to notice and a hearing under the Administrative Agency Law, the governmental action at issue must constitute an adjudication. An “adjudication” as defined by the Law is:

Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made.

2 Pa.C.S. § 101.

However, the action taken by the Department in withholding action on Petitioners’ applications is not a final order or determination. Rather, it is itself a barrier to any final order which may issue on the subject of those applications. Because the Administrative Agency Law applies only to final decisions, the protections of Section 504 are inapplicable to the “holding” of Petitioners’ license applications. See Sandy Creek Forest, Inc. v. Commonwealth, Department of Environmental Resources, 95 Pa.Commonwealth Ct. 457, 505 A.2d 1091 (1986).

Even if the decision were an adjudication, mandamus to compel the issuance of licenses is not the proper remedy. Just because there is a due process violation does not mean that the person whose rights were violated is entitled to a license as a remedy, only an order requiring that he or she receive the process which is due. Roth v. Borough of Verona (Roth II), 102 Pa.Commonwealth Ct. 550, 519 A.2d 537 (1986).

D.

Even though Petitioners were not entitled to a hearing before the Department placed a “hold” on their license applications, Petitioners are nonetheless entitled to have the holds on their pending applications lifted. Once an investigation into the “worthiness” of an applicant is completed, the Department has a non-discretionary duty to issue a decision one way or the other on the license application.

While a court cannot specify how a discretionary duty, such as issuing a license to represent additional insurance companies, is to be carried out, it can direct that discretion be exercised. Pennsylvania Dental Association v. Commonwealth of Pennsylvania Insurance Department, supra. As observed by the our Supreme Court:

Mandamus is a device that is available in our system to compel a tribunal or administrative agency to act when that tribunal or agency has been “sitting on its hands. ”

Id. 512 Pa. at 227, 516 A.2d at 652 (emphasis added). See Marinari v. Department of Environmental Resources, 129 Pa.Commonwealth Ct. 569, 566 A.2d 385 (1989). See also British Airways Bd. v. Port Authority, 564 F.2d 1002 (2d Cir.1977); and generally, Note, Judicial Review of Administrative Inaction, 83 Columbia L.Rev. 627 (1983).

The Department admits that its investigation into the worthiness of Petitioners for additional licenses is complete and if it were to issue a determination on the held applications, it would deny them and open the way for Petitioners to initiate the appeal process. While we recognize that the Department has wide latitude in conducting an investigation before issuing a license and we do not question the Department’s authority to refrain from taking any action on an application while that investigation is on-going, to hold these applications after the investigation is complete and a determination of unworthiness made is a de facto denial which the Department could make without ever having that decision challenged.³⁰

In this case, all the elements of mandamus have been met. There is no adequate remedy for Petitioners other than mandamus because the Department’s refusal to take final action on the applications precludes any appeal. The Insurance Department Act places a duty on the Department to either grant or deny applications consistent with its processing, and while the Department does have discretion in the outcome of its determination, it does not have the discretion to refuse to process Petitioners’ applications. Because its investigation is complete and the Department has concluded that Petitioners are not worthy of a license, the Department has a non-diseretionary duty to deny those applications and Petitioners are entitled to mandamus ordering the Department to either grant or deny all Petitioners’ license applications currently being held.

V.

Based on the foregoing discussion, the Department is entitled to partial summary dismissing those counts declaring:

• Sections 7, 8 and 9 of the Unfair Insurance Practices Act to be constitutional insofar as there is not an impermissible commingling of prosecutorial and adjudicative functions within the office of Insurance Commissioner in enforcement proceedings brought under that Act.

•the initial denial of Petitioners’ license applications to be lawful.

•the Department’s “holding” new license applications during the pendency of its investigation did not violate due process.

However, Stone & Edwards is entitled to mandamus directing the Department to either grant or deny the application of Sun Life Insurance Company to have Stone & Edwards licensed to be its agent because the Department’s investigation is complete, and it has a non-discretionary duty to process that application.

ORDER

AND NOW, this 3rd day of January, 1994, it is hereby ORDERED as follows:

1. That the Commonwealth of Pennsylvania Department of Insurance’s motion for summary judgment is granted in part and denied in part. Specifically:

a. No. 216 M.D.1992 is dismissed.

b. Petitioners’ counts challenging Sections 7, 8 and 9 of No. 317 M.D.1992 of the Unfair Insurance Practices Act are dismissed.

c. Any claims that Petitioners’ license applications should be granted are dismissed.

2. Petitioners’ motion for summary judgment is denied except that the Department is directed to either grant or deny the application of Sun Life Insurance Company to have Stone & Edwards licensed as its agent within twenty (20) days of entry of this order.

Footnotes

1

. Act of July 22, 1974, P.L. 589, No. 205, as amended, 40 P.S. §§ 1171.7-1171.11.

2

. Stone & Edwards brokers in life, accident, health, property and casualty insurance, as well as certain annuity investments.

3

.Emerson Lightner, while having retired as an officer of Stone & Edwards, still brokers policies through the firm. Gary Lightner writes policies for several insurance companies through Stone & Edwards and remains an active officer in the corporation.

4

. Even though licensed to represent other companies, evety time one wishes to receive a license to represent a new insurance carrier, a new license must be obtained from the Commissioner. Section 603 of the Insurance Department Act (Act), Act of May 17, 1921, P.L. No. 789, as amended, 40 P.S. § 233.

5

. While Gary Lightner had no license applications pending when the hold was instituted by the Department, an application to have Stone & Edwards appointed its agent had been submitted by Sun Life Insurance Company.

6

. Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 186.

7

. 2 Pa.C.S. § 102(a). Petitioners also contended that the regulations promulgated under these statutes, 1 Pa.Code §§ 35.14, .121, .185, .187, .190 and .226; 4 Pa.Code § 9.1; 31 Pa.Code §§ 33.7, .18, .21 and 56.2, enabled the impermissible commingling.

8

. Petitioners’ request for injunctive relief in the No. 216 M.D.1992 action was denied by Senior Judge Silvestri on July 9, 1992. However, the same day, in Robert C. Griffin v. Pennsylvania Insurance Department, Senior Judge Silvestri issued a preliminary injunction against the Department staying enforcement proceedings under a commingling challenge to portions of the UIPA. Based upon this injunction, Plumley stayed proceedings in both the P91 and P92 actions.

9

. Hearings were held before Judge Friedman on Petitioners’ request for injunctive relief. Judge Friedman issued a decree nisi enjoining the Department in P92 (licensing action) on the basis that the provisions of the UIPA under which the proceeding was commenced permitted an unconstitutional commingling of functions under the Supreme Court’s decision in Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992). Following post-trial exceptions, Judge Friedman filed a modified decree nisi, preliminarily prohibiting the Department from holding Petitioners' new license applications or denying such applications on the basis of unworthiness, ordering the Department to grant the license applications of Aetna and Colony, and temporarily enjoining proceedings in both the P92 and P91 actions. Judge Friedman then ordered No. 216 M.D.1992 and No. 317 M.D.1992 consolidated for the filing of dispositive summary judgment motions presently before us.

10

. While the Petitioners' motion for summary judgment and the Department’s counter-motion deal with both actions, Petitioners have not addressed in their brief the contentions raised in No. 213 M.D.1992, which, accordingly, are waived. Commonwealth by Zimmerman v. National Apartment Leasing Co., 108 Pa.Commonwealth Ct. 300, 529 A.2d 1157 (1987).

11

. Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, along with testimony, demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. McNeal v. City of Easton, 143 Pa.Commonwealth Ct. 151, 598 A.2d 638 (1991).

12

. Article I of the Pennsylvania Constitution provides in relevant part:

§ 1. All men are bom equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

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§ 9. In all criminal prosecutions the accused hath a right to ... a speedy public trial by an impartial jury of the vicinage; he cannot be ... deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.

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§ 11. All courts shall be open; and every man for an injury done to him in his lands, goods, person or reputation shall have a remedy by due course of law, and right and justice administered without sale, denial or delay....

13

. We recently applied the Supreme Court's "walls of division” principle in Cooper v. State Board of Medicine, 154 Pa.Commonwealth Ct. 234, 623 A.2d 433 (1993). Cooper involved a post-Lyness challenge to disciplinary proceedings before the State Board of Medicine. Following Lyness, the Board adopted emergency interim regulations which prohibit Board members who participate in the decision to prosecute from participating in the adjudication of the merits of the case. In response to Cooper's contention that Lyness requires an entity distinct from the Board initiate prosecutions, we stated:

In fact, the Lyness court implicitly concluded that sub-entities of administrative agencies could perform the prosecutorial and adjudicative without commingling those functions, as long as walls of division are constructed to eliminate the threat or appearance of bias, (citations omitted).

Thus, the separate entity that the court envisioned could consist of members of the Board itself, as long as none of those members had participated in the prosecution stage of the proceeding.

Id. at 237, 623 A.2d at 435.

14

. § 7 Power of Commissioner.

The Commissioner may examine and investigate the affairs of every person engaged in the business of insurance in this state in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by this act.

40 P.S. § 1171.7.

15

. § 8 Administrative Hearing.

(a) If, as a result of investigation, the Commissioner has good cause to believe that any person is violating any provision of this act, the Commissioner shall send notice of the violation by certified mail to the person believed to be in violation. The notice shall state the time and place for the hearing which shall not be less than thirty days from the date of such notice.

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(e) Following the hearing, the Commissioner shall issue a written order resolving the factual issues presented at the hearing and stating what remedial action, if any, is required of the person charged. The Commissioner shall send a copy of the order to those persons participating in the hearing.

40 P.S. § 1171.8.

16

. § 9 Administrative Penalty.

Upon a determination by hearing that this act has been violated, the Commissioner may issue an order requiring the person to cease and desist from engaging in such violation or if such violation is a method of competition, act or practice defined in Section 5 of this Act, the Commissioner may suspend or revoke the person's license.

40 P.S. § 1171.9.

17

. 31 Pa.Code § 56.2 implements these provisions:

(a) At the conclusion of an administrative hearing, ... the matter will be adjudicated by the Commissioner....

18

. See, General Dental Law, 63 P.S. §§ 122(h), (j).; Pharmacy Act, 63 P.S. §§ 390-5, 390-6; Veterinary Medicine Practice Act, 63 P.S. §§ 485.5, 485.25.

19

. Answer and new matter of the Insurance Department, Paragraphs 61-64. Answer and new matter of Thomas S. Buzby (Deputy Insurance Commissioner), Paragraphs 15-16. The Commissioner is authorized to delegate all of her prosecutorial functions to the Deputy Commissioner — Enforcement pursuant to Section 213 of the Administrative Code, as amended, 71 P.S. § 73.

20

. See N.T. July 9, 1992, at 47, 48; N.T. October 29, 1992, at 72-89.

The only contact between Deputy Commissioner Buzby’s office and that of the Office of Administrative Hearings came after Deputy Commissioner Buzby issued an order to show cause in the P91 enforcement action and application was made by his department to the Office of Administrative Hearings to have a hearing officer appointed. The hearing office in this case, Lama C. Plumley, had no contact with Deputy Commissioner's Buzby's office prior to her appointment. N.T. July 9, 1992, at 34-37.

21

. See N.T. July 9, 1992, at 32-48; N.T. October 16, 1992, at 58-59; N.T. October 29, 1992, at 77-81.

22

. Section 15 of the Medical Practices Act provided that:

(a) The board shall have the authority to refuse, revoke or suspend the license of a physician. ...

Pursuant to regulations in force at the time, the determination of whether sufficient evidence existed to warrant a prosecution of a license revo cation proceeding rested with the Board. 49 Pa.Code § 16.62(c) (1987).

23

. Lyness, 529 Pa. at 549, 605 A.2d at 1211. See also Dussia v. Barger, supra; Bunch v. State Board of Auctioneer Examiners, 152 Pa.Commonwealth Ct. 616, 620 A.2d 578 (1993); and Georgia Pacific Corp. v. City of Reading Commission on Human Relations, 137 Pa.Commonwealth Ct. 312, 585 A.2d 1166 (1991).

24

. Because the Department’s denial of Petitioners’ license applications was not a final order, it is not an adjudication within the meaning of Section 101 of the Administrative Agency Law, 2 Pa.C.S. § 101, requiring a hearing at that level. We, therefore, find no merit in Petitioners' contention that the denial of their license applications without hearing violated Section 504 of the Administrative Agency Law. See, e.g., Sandy Creek Forest, Inc. v. Department of Environmental Resources, 95 Pa.Commonwealth Ct. 457, 505 A.2d 1091 (1985).

25

. Petitioners in this case did take an appeal from the initial Bureau decision to deny their applications to the Commissioner. This action, however, was instituted before hearings could be held in accordance with Sections 33.7 and 33.18.

26

. After the events prompting this action, Section 603 was amended by Section 3 of the Act of June 11, 1992, P.L. 284, No. 48, requiring licensees to obtain licenses for each class or line of insurance the applicant wishes to engage in rather than a separate license for each individual company. As the transition from the former license scheme is dependent on a date of transition which has not yet been established, only the former provisions are applicable to Petitioners. For the purposes of our discussion, therefore, we will simply refer to the law prior to amendment as the Act.

27

. One wishing to be licensed by the Commonwealth as an agent for an insurance company must first submit an application to the Department, accompanied by a certification from the insurance company that the applicant is worthy of licensure. 31 Pa.Code § 31.1. This application is then examined by the Division of Agents and Brokers for completeness. 31 Pa.Code § 33.2(a). If the application is complete and the applicant has either passed or is exempt from the requisite examination, the Division of Agents and Brokers conducts an investigation of the applicant in order to satisfy itself as to his or her worthiness for licensure. 33 Pa.Code § 33.21(e). If the Division of Agents and Brokers is satisfied as to the applicant’s worthiness and all other requirements are met, it must grant the license. 33 Pa.Code § 33.21(e). Conversely, if it is not satisfied that the applicant is worthy, the Division of Agents and Brokers will deny the application. Upon the refusal of the Division of Agents and Brokers to issue a license on the basis that it is not satisfied that the applicant is worthy, the applicant may file an appeal to the Commissioner and is entitled to a hearing on the issue of his or her worthiness for licensure. 1 Pa.Code § 35.20. The Commissioner then issues a decision either granting or refusing the license on the basis of the evidence adduced at that hearing. From this determination, an aggrieved applicant may then appeal to the Commonwealth Court in its appellate capacity. 2 Pa.C.S. § 702; 42 Pa. C.S. § 763(a).

28

. The threshold inquiry in any due process analysis is whether there exists any identifiable property or liberty interest at issue; for without such an interest, due process is not applicable. Pennsylvania Interscholastic Athletic Assn. v. Greater Johnstown School Dist., 76 Pa.Commonwealth Ct. 65, 463 A.2d 1198 (1983). A protected property interest results from a legitimate claim to entitlement under Commonwealth law rather than a mere desire for or unilateral expectation of it. Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977). The courts of the Commonwealth have recognized that the right to earn a livelihood is a protected property interest and an existing license to transact business cannot be revoked or suspended without the requisite process. Lyness, supra, at 542, 605 A.2d at 1207.

29

. Section 504 of the Administrative Agency Law provides:

No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard....

2 Pa.C.S. § 504.

30

. The provisions of 31 Pa.Code § 33.23(f) do not give the Department any authority to "hold” Petitioners' license applications after its investigation is complete. The Section provides:

(£) If a company's request for the termination of a license in any way reflects on 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 the time of such termination.

As no petition for terminate Petitioners’ representation has been filed by any insurance company, the Department cannot rely on this Section to justify continuing its “hold” after its investigation into the applicants’ worthiness is complete.