First National Bank v. Department of Banking , 4 Pa. Commw. 168 ( 1972 )

Opinion by

Judge Mencer,

The First National Bank of Milford has filed this appeal from the order of the Department of Banking, dated June 11, 1971, approving the application of The Bank of Matamoras to establish a branch barde in Milford, Pennsylvania. Our jurisdiction is properly invoked under Section 403(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P. L. , No. 223,17 P.S. §211.403(1). The Bank of Matamoras filed its application on December 17, 1970 and The First National Bank of Milford filed a protest to this application on January 26,1971. After receiving the protest, the Department of Banking scheduled a hearing for March 19, 1971. Prior to this hearing the Department of Banking only divulged to The First National Bank of Milford those portions of the application and supporting data deemed to be not confidential. We believe the failure to make the entire application and supporting data available to the protestant prior to hearing requires us to remand this case for further proceedings in accordance with the ruling of Conestoga National Bank of Lancaster v. Patterson, 442 Pa. 289, 275 A. 2d 6 (1971).

Since we remand in accordance with the holding of Conestoga National Bank of Lancaster v. Patterson, supra, we do not presently reach the merits of whether the Department of Banking erred in granting the application. In Conestoga it was held that procedural due process requirements under both the Fourteenth Amendment of the United States Constitution and Article V, §9 of the Pennsylvania Constitution mandate that prior to a hearing before the Department of Banking the protestant bank shall have access to the branch application and supporting data.

The Conestoga decision was made by our Supreme Court on March 18, 1971, and was reported in the June 18, 1971, advance reports of the official state reports. The hearing in this case was held on March 19, 1971, and the order of the Department of Banking from which appeal was taken was under date of June 11, 1971. Since Conestoga substantially changed the law in Pennsylvania as previously set forth in Cement National Bank v. Department of Banking, 425 Pa. 554, 230 A. 2d 209 (1967), and yet Conestoga was not officially reported to the profession until after the order of the Department of Banking, it would seem harsh to preclude the appellant from now asserting for the first time the rights given it by Conestoga because it did not assert these rights prior to the time Gonestoga appeared in the official advance reports. We cannot conclude that appellant waived the constitutional rights which were for the first time enunciated by Conestoga. A waiver is the intentional relinquishment of a known right. Linda Coal and Supply Company v. Tasa Coal Company, 416 Pa. 97, 204 A. 2d 451 (1964); Brown v. Pittsburgh, 409 Pa. 357, 186 A. 2d 399 (1962). To constitute a waiver of a legal right, there must be a clear, unequivocal and decisive act of the party with knowledge of such right and an evident purpose to surrender it. Cole v. Philadelphia Company, 345 Pa. 315, 26 A. 2d 920 (1942). We believe there was no waiver by appellant under the circumstances of this case. Further, a court may properly consider the constitutionality of a proceeding even though the question was not raised before the board or agency which passed on the merits of the proceeding. Eller v. Board of Adjustment, 414 Pa. 1, 198 A. 2d 863 (1964).

The order of the Department of Banking is vacated and the case remanded for a further hearing at which The First National Bank of Milford shall have the opportunity to present evidence and prior to which said bank shall have access to the application and supporting data submitted to the Department of Banking by The Bank of Matamoras.