Appeal from the Order of the Department of Banking in case of In Re: Application of First Valley Bank, Lansford, Pennsylvania, to Establish Branch at 61 North Third Street, Easton, Northampton County, Pennsylvania. Order of August 21, 1973.
William M. Young, Jr., with him Francis B. Haas, Jr. and McNees, Wallace & Nurick, for appellants.
Edward L. Symons, Jr., Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
Roland Morris, with him Franklin S. Van Antwerpen, Duane, Morris & Heckscher and Hemstreet, Smith and Van Antwerpen, for intervening appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Concurring Opinion by Judge Blatt. Dissenting Opinion by Judge Mencer. Judge Crumlish, Jr., joins in this dissent.
[ 13 Pa. Commw. Page 112]
This is an appeal from an adjudication of the Department of Banking made on August 21, 1973, approving the application of intervening appellee, First Valley Bank, for a letter of authority to establish a branch at 61 North Third Street, Easton, Pennsylvania. Intervening
[ 13 Pa. Commw. Page 113]
appellee had previously, on May 8, 1972, applied for approval of a branch at this same location. Prior to that time, on April 5, 1972, it had applied for a branch at Third and Ferry Streets in Easton, nearby the present site, but this application had been withdrawn when one of the protesting appellants, Easton National Bank and Trust Company, prevailed upon the owners of the location to give it preference as a site for a proposed branch it wished to establish. Intervening appellee's application of May 8, 1972, for a branch at 61 North Third Street, was denied by the Department of Banking on July 18, 1972, without holding a hearing.
On October 30, 1972, intervening appellee filed with the Department of Banking its re-application for a letter of authority to establish a branch at 61 North Third Street. The application was protested by the three appellants. Hearings were held by the Department on February 23 and February 28, 1973. The Department of Banking, on August 21, 1973, approved the bank application and filed its order, amply supported by findings of fact and conclusions of law. It is from this order that the appeal pending before us was taken.
Appellants rely heavily on First Bellefonte Bank and Trust Company v. Myers, 410 Pa. 298, 188 A.2d 726 (1963). Such a reliance is misplaced, for the protestants in First Bellefonte took the position that the earlier rejection of a similar application from the same bank was res judicata. This position, being essentially the position of appellants, was rejected by both the majority and the dissent. In First Bellefonte, on the first application, a full hearing was held. In the instant case, there was no hearing on the first application. In our view, First Bellefonte stands for two propositions. First, res judicata does not apply when a new application is filed after one has been rejected. Second, if a hearing was held on the first application,
[ 13 Pa. Commw. Page 114]
then at the hearing on the second application, evidence must be produced that there has been a change of circumstances and that there is a need. Indeed, Chief Justice Bell particularly emphasized this point when he italicized "similar" in his statement: "In this case and in other similar cases. . . ." ...