Appeal of P.S. Docket No. MD-23 -- SARAH LINN, and MICHAEL M. SABAR

In the Matter of a Mail Dispute Between: SARAH LINN, and MICHAEL M. SABAR P.S. Docket No. MD-23 07/14/88 Thompson, Joan B. Administrative Judge

INITIAL DECISION

This mail dispute concerns mail addressed to P. O. Box 25035, Los Angeles, California 90025-0035. The dispute was forwarded by the Regional Counsel's Office for the Western Region for resolution pursuant to Domestic Mail Manual (hereafter DMM) 153.72, and 39 C.F.R. Part 965 (52 Fed. Reg. 29012, August 5, 1987). Each disputant seeks certain personal mail and mail in the name of Nova Messenger Service, Inc., which has been addressed to the box. Both disputants have filed written submissions from which the Findings of Fact have been made.

FINDINGS OF FACT

1. In June 1983 an application was filed by Mike Menashe Tcabar for a post office box in the name of Nova Messenger Service. The box in that name was given number 25035 at the West Los Angeles Station, 11420 Santa Monica Blvd., Los Angeles, California 90025-9998. Mr. Tcabar also uses an anglicized version of his name, Michael M. Sabar.

2. The disputants were briefly married to one another in 1980 and 1981. Sarah Linn thereafter sometimes used the name Sarah Sabar. She now also uses her new married name, Sarah L. Ritts, as well as her maiden name Sarah Linn.

3. In January 1985 Mr. Sabar incorporated the business and sold 50 percent of Nova Messenger Service, Inc. to Sarah Linn. He was named president and she was named the vice president of the company. The by laws of the company provide that

"In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board, or if not ranked, the Vice President designated by the Board shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon the President."

4. In their contract of sale, the disputants agreed, among other matters, that the seller would remain actively engaged in the business until at least January 2, 1987, after which the seller would have the option to become inactive in the business.

5. In September 1985 the disputants entered into another written agreement which provided that Mr. Sabar would become inactive in the company as of September 1, 1985, but was entitled to receive a designated monthly payment. The agreement provided for vacation periods for Ms. Linn during which Mr. Sabar would oversee the company. It also provided for a four-month leave for Ms. Linn in case of pregnancy and that a five-month notice must be given to Mr. Sabar. It provided: "If a leave of absence is given then Sarah Linn will be considered inactive and she shall receive the appreciation that Michael Sabar is/has received during his time of inactivity." Mr. Sabar was not to return to the company "unless otherwise agreed to by each said party." He was to return immediately in case of an emergency "whether it be of a personal or business to Sarah Linn." The agreement also provided: "Before Michael M. Sabar may return to Nova as an active partner, Nova Messenger Service, Inc. shall be audited and Sarah Linn shall receive full profits for his period of inactivity."

6. After executing this agreement, Mr. Sabar returned to his native country (Israel) and Ms. Linn ran the company including paying the rent for the disputed post office box in the name of Nova Messenger Service, Inc. She informed personnel at the postal station of the status of the box, renewed the box, and submitted the names of persons authorized to receive mail from the box. In addition to the company's mail, she also received personal mail for herself and her family addressed to the box.

7. In April 1988 Mr. Sabar returned to this country and picked up mail from the box, including checks addressed to the company. On April 19, 1988, Ms. Linn as "President" of Nova Messenger Service, Inc., requested the post office to change the box combination and deliver any mail at the counter only to her. In her letter of May 24, 1988, to the Judicial Officer she asserted that postal officials had informed her that her own and her family's personal mail would be turned over to Mr. Sabar and that she could not put a change of address on her personal mail.

8. At the time this dispute arose, Ms. Linn was expecting a baby. However, she had not requested a leave of absence and had made arrangements for someone else to take over when she had the baby. According to her, Mr. Sabar had not honored past requests for vacation leave. It appears Mr. Sabar's return to this country may have been for reasons other than relieving Ms. Linn during her confinement, despite his assertion giving that as the reason. There has been no audit of the company's profits as provided by the parties' agreement, but Mr. Sabar has indicated a willingness to audit the company's profits.

9. Both parties seek mail addressed to the box in the name of Nova Messenger Service, Inc. and in their personal names. Ms. Linn requests all mail in her own names and in the names of her family. Mr. Sabar requests that mail in the name of Sarah Sabar be turned over to him. According to personnel at the West Los Angeles Station, most of the mail addressed to the box is personal mail for Sarah Linn.

10. The parties dispute Mr. Sabar's right to take the company's checks and their rights and obligations to one another in the business. According to Mr. Sabar, Ms. Linn subsequently transferred assets of the business to another address and has obtained a private post office box. Both disputants accuse the other of breaching their contracts. They also accuse the other of fraudulent and other improper conduct and of criminal acts, including violations of mail laws, with respect to use of the box and their business relationship.

CONCLUSIONS OF LAW

1. The disputants' charges of criminal acts by the other should be addressed to appropriate authorities, if they wish to pursue them. In the Postal Service, the appropriate authority is the Postal Inspection Service. Also, the disputants' charges of breach of their contracts and of other civil wrongs should be resolved in a court of law if the parties cannot reach an agreement. The determination in this proceeding is only for the purpose of discharging the Postal Service's delivery of mail responsibilities until the parties resolve their differences by agreement or obtain a court order which can be recognized as resolving the mail delivery issues raised in this proceeding. See DMM 153.71-153.73.

2. Since 1985 Nova Messenger Service, Inc. has been the post office box customer, as defined in DMM 951.122. The box customer "may receive through the box any mail properly addressed to the box number." DMM 951.151. "Mail addressed only to a box number will be delivered to the box as long as no improper or unlawful business is conducted." DMM 951.152. The customer of the post office box can file a change of address order. However, it is not the Postal Service's responsibility to forward mail addressed to the box in the name of other persons. Instead, according to DMM 951.753, forwarding mail addressed to the box for other persons is the responsibility of the box customer.

3. Where there is disagreement among corporate officers and others connected with a corporation, DMM 153.51 provides that mail is to be delivered in accordance with the order of the president of the corporation.

4. There is no dispute that Mr. Sabar was president of Nova Messenger Service, Inc., when half interest in the company was sold to Ms. Linn in 1985. However, by relinquishing his active role in the company by the September 1985 agreement between the parties he agreed to certain conditions before he could resume an active role, which would include the actual duties and responsibilities of president of the corporation.

5. Since September 1985 Ms. Linn has been the acting president of the company completely responsible for the company. By the disputants' September 1985 agreement, Mr. Sabar was to return to active participation only with her agreement and after an audit of the company profits. As neither of these conditions exist, for the purpose of resolving this mail dispute, Ms. Linn is considered as remaining the acting president of Nova Messenger Service, Inc., the post office box customer.

6. Mr. Sabar has no right to mail addressed to Post Office Box 25035 in the name of Sarah Linn or her former or present married names. Mail in the name of Michael M. Sabar addressed to the box and which is being held pending this dispute may be delivered to him. The mail addressed to Post Office Box 25035 in the name of Nova Messenger Service, Inc. shall be delivered in accordance with Ms. Linn's directions as the acting president of that corporation. As acting president of the box customer, she is also entitled to mail addressed to the box in her own name and, pursuant to DMM 951.753, will hereafter be responsible for forwarding mail addressed to other persons using the box number, including Mr. Sabar. In view of the disputants' disagreements, they should cease using the box for personal mail.

7. The attached mail delivery instructions to the Manager should be issued.