Ritter Finance Co. v. Myers

• Decision Date: 15 November 1960
• Citation: 165 A.2d 246,401 Pa. 467
• Parties: PITTER FINANCE COMPANY, Inc., OF LEVITTOWN, Appellant in No. 1, King Finance Corporation, Appellant in No. 2, v. Robert L. MYERS, Jr., Secretary of Banking for the Commonwealth of Pennsylvania. Appeal of KING FINANCE CORPORATION.
• Court: Pennsylvania Supreme Court

165 A.2d 246

401 Pa. 467

PITTER FINANCE COMPANY, Inc., OF LEVITTOWN, Appellant in No. 1, King Finance Corporation, Appellant in No. 2, v. Robert L. MYERS, Jr., Secretary of Banking for the

Commonwealth of Pennsylvania. Appeal of KING FINANCE CORPORATION.

Supreme Court of Pennsylvania.

November 15, 1960.

Harold E. Kohn, William T. Coleman, Jr., Ross J. Reese, Jr. Dilworth, Paxson, Kalish, Kohn & Dilks, Philadelphia, for appellant, Ritter Finance Co., Inc.

Peter Platten, Hamilton C. Connor, Jr., Ballard, Spahr, Andrews &amp Ingersoll, Philadelphia, for appellant, King Finance Co.

Frederic G. Antoun, Deputy Atty. Gen., Anne X. Alpern, Atty. Gen William M. Steinbach, Asst. Atty. Gen., for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK and EAGEN, JJ.

BELL, Justice.

The present appeals in the nature of a broad certiorari were taken by neighboring Small Loan Companies from the Order of the Secretary of Banking which granted a Small Loan License of Household Finance Corporation for a branch office in Levittown.

Household Finance Corporation, the applicant for a Small Loans License, seeks to establish a branch office in an area where within a radius of 7.2 miles there are already 13 licensed small loan company offices. Ritter Finance Company, Inc. (appellant) has two offices in the area, one 900 feet and the other 5.4 miles from applicant's proposed location. King Finance Corporation (appellant) has an office which is located 6.2 miles from the proposed location.

The Department of Banking, in accordance with its practice, notified each of the small loan companies which are located within the 'community', of Household's application and offered them an opportunity to file objections in writing within 20 days. Testimony was taken, exhibits offered and a 'determination' or Order was made by the Secretary of Banking. Both Ritter and King, although they have never been made parties to this proceeding, filed objections and appeared before the Secretary at the hearing and unsuccessfully protested the grant of a license.

Appellants contend in this appeal (1) that the Secretary of Banking committed fundamental error by relying upon material which was not contained in the record and as to which they had no opportunity for examination or cross-examination; (2) that the evidence was insufficient to support the findings of the Secretary or to justify the grant of a license; and (3) the Secretary based his decision and Order on errors of law.

At the threshold of our consideration of this case we are met with the motion of the Secretary of Banking to quash the appeals. The first and basic issue therefore is whether an appeal in the nature of certiorari will lie, and if so whether the pressent appellants have any standing to appeal.

The Small Loans Act ^[1] provides pertinently:

'Section 1 * * *

'(a) Any person or persons, firm, corporation, or association, applying for the same * * * and paying the sum of one hundred ($100) dollars, may, in the discretion of the Secretary of Banking * * * obtain a license for carrying on the said business. The said license shall be issued by the Secretary of Banking, and shall expire the first day of June next following the date of its issuance * * *. ^[2] Every such license shall be renewed annually on the first day of June in each year * * *. The said Secretary of Banking shall have the power to reject any application for license, if he is satisfied that the financial responsibility, experience, character and general fitness of the applicant or applicants are not such as to command the confidence of the community and to warrant the conclusion that the business will be honestly transacted in accordance with the intent and purpose of this act, or if he is not satisfied that allowing such applicant to engage in business will promote the convenience and advantage of the community in which the business of the applicant is to be conducted, or if it shall appear to the Secretary of Banking that the business of the applicant is, or is to be, substantially that generally conducted by pawnbrokers * * *.'

The Act contains no provision for a hearing or an appeal if and when the Secretary issues a license, but does provide (a) for a hearing when the Secretary issues a notice of intention to revoke a license and (b) 'The licensee may, within the period of thirty days provided in the notice, appeal from such action to the court of common pleas of Dauphin County.' § 1(a) as amended by § 1 of the Act of May 28, 1937, P.L. 989, 7 P.S. § 752.

It is to be noted from the preceding provisions that (1) licenses are issued for a period of only one year and must be rerenewed each year; ^[3] (2) nowhere does the Act provide for notice or hearing or appeal with respect to the grant of a license; and (3) where the Secretary signifies his intention to revoke a license, the Act provides for notice, hearing and an appeal to the Court of Common Pleas of Dauphin County. In this last situation it would appear that no right of appeal by certiorari to this Court from the decision or Order of the Secretary of Banking exists.

Where, as here, a statute is silent as to the right to appeal, or does not provide that the decision of the Secretary or of the Department of Banking shall be final, conclusive or otherwise non-appealable, an appeal--if certiorari lies and if the appellant has a status to appeal thereunder--is allowed in the nature of a broad certiorari. Dauphin Deposit Trust Co. v. Myers, 1960, 401 Pa. 230, 164 A.2d 86; Cumberland Valley Savings & Loan Ass'n v. Myers, 1959, 396 Pa. 331, 340, 153 A.2d 466; Philadelphia Saving Fund Society v. Banking Board, 1955, 383 Pa. 253, 256, 118 A.2d 561; Delaware County National Bank v. Campbell, 1954, 378 Pa. 311, 316-317, 106 A.2d 416.

In support of their right to bring these appeals, appellants rely upon the four cases cited above. All of them are distinguishable. In Delaware County National Bank v. Campbell, 378 Pa. 311, 106 A.2d 416, supra, this Court held that a national bank which was a protestant, had a standing to attack the proposed merger of the Fidelity-Philadelphia Trust Company and the First National Bank of Chester. That case arose under the Banking Code of May 15, 1933, P.L. 624, as amended, ^[4] and the Department of Banking Code of May 15, 1933, P.L. 565, as amended, ^[5] and a protesting bank was allowed a right of appeal in the nature of a broad certiorari.

In Philadelphia Saving Fund Society v. Banking Board of Pennsylvania, 383 Pa. 253, 118 A.2d 561, supra, the Society's application for a branch bank was denied by the Banking Board and this Court allowed an appeal in the nature of a broad certiorari. Mr. Justice (Now Chief Justice) Jones, speaking (on this point) for a unanimous Court said (383 Pa. at page 256, 118 A.2d at page 561): 'The appellees have moved to quash the appeal. The motion must be denied. This court has jurisdiction in the premises; and the certiorari is broad. So much was decided in Delaware County National Bank v. Campbell, 378 Pa. 311, 106 A.2d 416.'

In Cumberland Valley Savings & Loan Ass'n v. Myers, 396 Pa. 331, 153 A.2d 466, supra, this Court dismissed a motion to quash and allowed an appeal by a protesting building and loan association from an Order of the Building & Loan Board which approved an application of the State Capital Savings and Loan Association for a branch office.

In Dauphin Deposit Trust Co. v. Myers, 401 Pa. 230, 164 A.2d 86, supra, we allowed an appeal in the nature of a broad certiorari from an Order of the Secretary of Banking and the Department of Banking which disapproved an application for a branch office.

In the aforesaid cases the right of appeal in the nature of a certiorari, as well as the Banking Code, the Building & Loan Code, 15 P.S. § 1074-1 et seq., and the Department of Banking Code were analyzed in great detail. In Delaware County National Bank v. Campbell, the Court said (378 Pa. at pages 320, 321, 323, 325, 106 A.2d at page 420):

'But the contention of the Attorney-General and of the Fidelity-Philadelphia Trust Company goes deeper. They contend that even though no right of appeal or certiorari is prohibited, certiorari will not lie from the decisions of a nonjudicial administrative board unless specifically authorized by the legislature * * *. It impliedly appears from this case that certiorari will lie to this Court from an order or judgment of an Administrative Board which is judicial in nature and substantially affects property rights.

* * *

* * *

'However, the Attorney-General and the Fidelity-Philadelphia Trust Company further argue that even if certiorari lies, a [protesting] national bank has no standing or right to be heard on such appeal. In support of this contention they cite Pennsylvania Commercial Drivers Conference v. Pennsylvania Milk Control Commission, 360 Pa. 477, 62 A.2d 9, 13, where this Court said that to be a proper party the party "must have a (direct) interest in the subject matter of the (particular) litigation, otherwise he can have no standing to appeal. And not only must the party desiring to appeal have a (direct) interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial."

* * *

* * *

'Part of the powers and duties of the department of Banking, and in cases of mergers with resultant branch banking, part of the powers and duties of the Banking Board, is to determine, as the Department and Board did in the present case, whether the community served and from which a bank draws its depositors and clients has adequate banking facilities and is not overbanked. '* * * the clear intention of the...