James H. McHale, Philadelphia, for appellant.
Frank W. Hatfield, Sabato M. Bendiner, Busser & Bendiner, Philadelphia, for intervening appellee.
Albert E. Luttrell, Paul E. Beaver, Asst. Counsel, Lloyd S. Benjamin, Counsel, Pennsylvania Public Utility Commission, Harrisburg, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 405]
This is an appeal from an order of the Public Utility Commission granting a certificate of public convenience
[ 173 Pa. Super. Page 406]
to Ray Slater, and canceling an outstanding certificate issued to Joseph and Ray Slater, co-partners, doing business as Slater Brothers.
Joseph Slater, appellant, and Ray Slater, intervening appellee, formed a partnership for the conduct of a trucking business in 1928 under the name of Slater Brothers. They were issued certificates of public convenience by the Public Service Commission on January 7, 1936, and by the Interstate Commerce Commission on August 29, 1938.
In October of 1939 they agreed to divide the firm's assets and to dissolve the partnership. Each thereafter continued his respective hauling operations as an individual, under the authority of the certificates of public convenience issued to the partnership. In 1947 they made a joint application for transfer to Ray Slater of the federal certificate, which was granted by the Interstate Commerce Commission on November 13, 1947. In February 1948 they made a similar application to the Pennsylvania Public Utility Commission, which was returned because of the omission of a statement by Joseph Slater releasing his interest in the partnership certificate. Joseph refused to supply the statement and in May 1949 he filed a bill in equity in the Court of Common Pleas of Philadelphia County alleging the continued existence of the partnership, asking for the appointment of a receiver and an accounting of the affairs of the partners inter se. The chancellor found that the partnership had terminated in 1939, that the terms of dissolution had been fair and reasonable, and that Joseph Slater had acquiesced in them at that time. He dismissed the bill by decree nisi on January 23, 1950; the decree was affirmed by a court en banc and by the Supreme Court in an opinion filed June 26, 1950. Slater v. Slater, 365 Pa. 321, 74 A.2d 179.
[ 173 Pa. Super. Page 407]
After the final disposition of that controversy, on December 7, 1950, Ray Slater applied to the Public Utility Commission for a new certificate of public convenience, requesting substantially the rights included in the 1936 certificate except for those assumed by Joseph Slater after the termination of the partnership. Several motor carriers filed protests, but at the hearing all protestants who appeared stipulated that they would withdraw objections to the new certificate if the partnership certificate were cancelled. Appellant did not file a formal protest before the hearing but he entered an appearance and took an active part in the proceeding, which was held ...