The opinion
Dissenting Opinion by
Judge Wilkinson:
When the majority vacates the order of the Banking Board resulting from a unanimous decision of the Board after a full hearing, where the applicant and protestant presented and cross-examined witnesses, because the protestant was not supplied information from the application which he did not request prior to the hearing, or at the hearing, did not object to not re *172 ceiving prior to the hearing, or at the hearing, nor even mentioned in his brief to the Board submitted after the hearing and before the decision, I must vigorously dissent.
The appellant filed its protest in the form of a 4-page letter, at the conclusion of which it asserted it was then prepared to appear at a hearing and document its protest in depth. It noticeably did not request any information from the Board much less any specific information, nor did it assert any deficiency in the information it needed to prepare or any inability to prepare. Again, to the contrary, it asserted it was then prepared to testify. At the hearing, prior to presenting its case, able counsel for the appellant made its only request of the Board when it asked:
“Mr. Beechard: I was wondering whether or not it would be possible at the close of the case for the Applicant if we might have some chance for rebuttal.
“Secretary Patterson: Oh, certainly. You will have a chance for cross-examination and rebuttal and everything else.” (Emphasis supplied.) I repeat, a careful examination of the record reveals this to be the only request made by the appellant raising its right to prepare and present its case and now, for the first time, before this appellate court, it is permitted to successfully assert it was denied its constitutional right of due process. I cannot agree that this action is required by Conestoga National Bank of Lancaster, et al. v. Patter son, 442 Pa. 289 , 275 A. 2d 6 (1971). In that case the appellant requested a hearing or access to the application. It was denied both. Here there was no request for either. The Board, on its own initiative, sent appellant a copy of the application deleting what it considered confidential matter, noting the deletions, and scheduled a hearing. Appellant appeared at the hearing prepared to testify, offered its witnesses, cross-exam *173 ined appellee’s witnesses, and at no time objected to its failure to receive any information.
Finally, not even in the brief filed with the Board following the hearing did appellant complain, for indeed it had never made a request that had been denied, and, therefore, there was no basis to complain. Indeed, in the brief filed with the Board following the hearing and after the testimony was transcribed and the record complete, the appellant phrased the “Statement of Question Involved”: “Has the Bank of Matamoras (Applicant) established that there is a community need for additional banking service such as it proposes by the establishment of a Branch Bank in Milford Borough, in the same block as the existing facilities of the First National Bank of Milford.”
The record in this appeal contains all the information presented to the Banking Board. Even at this late date, appellant does not point to any factual information which was withheld which caused it surprise or concerning which had it been informed in advance it would have been prepared to present additional explanatory or contradictory evidence. Absent such an assertion, how could lack of such information in advance be prejudicial?
Neither the majority nor the appellant cites any case that would justify this action. The cases contra are legion. Altman v. Ryan, 435 Pa. 401 , 257 A. 2d 583 (1969); Wynnewood Civil Association v. Lower Merion Township Board of Adjustment, 406 Pa. 413 , 179 A. 2d 649 (1962). Appellant cites the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.1, et seq., as conferring jurisdiction on this Court. This is quite correct, and this Act specifically provides in Section 42, 71 P.S. 1710.42, that the appellant may not raise upon appeal any question (other than the validity of the statute) not raised before the Bank *174 ing Board unless allowed by the court upon due cause shown. The majority accords appellant this extraordinary special right, not only without cause shown but, again, without even request by appellant.
I dissent.
President Judge Bowman joins in this opinion.