Appeal of P.S. Docket No. MD-26 -- MARK B. GOLDEN and RON WOLPOE


 In the Matter of a Mail Dispute Between:

 MARK B. GOLDEN
 and
 RON WOLPOE

 P.S. Docket No. MD-26

 10/25/88

 Thompson, Joan B.; Administrative Judge

 APPEARANCES FOR MARK B. GOLDEN:
 Martha R. Diehl, Esq.,
 Bernard P. Rome, Esq.,
 Rome and George,
 11 Beacon Street, Suite 1210,
 Boston, MA 02108-3002 


 APPEARANCE FOR RON WOLPOE:
 Sydney T. Schulman, Esq.,
 10 Grand Street,
 Hartford, CT 06106-1596

INITIAL DECISION

This dispute primarily concerns mail addressed to publications titled JEWISH SINGLES, JEWISH SINGLES SERVICE, and JEWISH SINGLES MAGAZINE, at P.O. Box 247, Newton, MA 02159. The Findings of Fact have been made from the submissions filed by both Disputants and from the report of the Office of Field Legal Services, Windsor, Connecticut, forwarding the dispute for resolution pursuant to Domestic Mail Manual (DMM) 153.72 and 39 C.F.R. Part 965.

FINDINGS OF FACT

1. In 1983 Disputant Mark B. Golden founded a for-profit business in Newton, Massachusetts under the name Jewish Single Service. In November 1985 he registered his business with the City of Newton as Jewish Singles Service. Sometime prior to July 1986 he rented P.O. Box 247, Newton, MA 02159, for Jewish Singles Service.

2. From 1983 to May 1985 Disputant Golden published seven issues of a magazine called JEWISH SINGLES SERVICE. From May 1985 until 1987, monthly issues of the magazine in that name or as JEWISH SINGLES were published by him as the only publisher. On September 26, 1986, he registered the JEWISH SINGLES SERVICE as a serial publication with the United States Copyright Office. The magazine primarily published personal ads by Jewish single individuals.

3. Starting with the 21st issue in July 1986, the magazine advised that persons in Connecticut or Western Massachusetts should subscribe or place an ad with JEWISH SINGLES SERVICE at P.O. Box 728, Bloomfield, CT 06002. Persons from other areas, and all those answering an ad, were to use P.O. Box 247, Newton, MA 02159. This advice continued through the 27th issue in January 1987.

4. The Disputants had some oral agreements between them, the exact terms of which are in dispute. However, it appears that Disputant Ron Wolpoe, using the Bloomfield address, paid for space in the magazine, and was entitled to sell personal and commercial ads, subscriptions and to solicit in Connecticut, Western Massachusetts, and Vermont. Also, apparently there was some understanding that when Disputant Wolpoe incorporated a non-profit organization, the magazine would be published under the auspices of that organization in order to have the support of various Jewish organizations. Incorporation papers for the American Jewish Singles Federation, Inc. were filed in September 1986. Disputant Wolpoe is the executive director of the corporation; no other information has been submitted concerning the officers of that organization.

5. In the 24th issue (October 1986) the magazine name was changed to JEWISH SINGLES. The 28th issue of the magazine (February 1987) listed Disputant Golden as the publisher and for the first time Disputant Wolpoe was listed as the co-publisher. The magazine announced that "JEWISH SINGLES is 'merging' with the AMERICAN JEWISH SINGLES FEDERATION INC. a non-profit 'umbrella' organization for all things Jewish and single." All subscription orders and all personal ad forms were to be sent to the editorial offices at P.O. Box 247, Newton, MA 02159. The March 1987 issue advised that commercial advertising should be sent to the advertising office in Connecticut.

6. Disputant Golden, as publisher, stated in the 30th issue (April 1987) that starting with that issue free subscriptions were offered, "but since we are a non-profit agency now (a division of American Jewish Singles Federation, Inc.), the free subscriptions will be sent out on a 'funds available' basis only." To assure they would receive copies, readers were advised to subscribe at $18 for 12 issues.

7. Beginning with the 31st issue (May 1987), the format of the title of the front page changed to a design arranged by a contact of Disputant Wolpoe. Beginning with the 33rd issue (July 1987), the formating and the printing were to be arranged by Disputant Wolpoe; formerly Disputant Golden had made the printing arrangements. From the 28th issue (February 1987) through the 33rd issue (July 1987), Disputant Golden is listed first as the publisher and Disputant Wolpoe also is listed as the executive director of the American Jewish Singles Federation, Inc. (hereafter AJSF).

8. No magazine was issued in August 1987. Issue 34 (Sept./Oct. 1987) stated that JEWISH SINGLES was published by AJSF. Disputant Golden's name as "Publisher/Personal ads & Responses" appeared after Wolpoe's name as executive director of AJSF. Issue 35 (December 1987) came out in January 1988 and had the same title format. However, on the inside masthead a logo was added including the words "JEWISH SINGLES MAGAZINE." The masthead also omitted the title "publisher" after Golden's name. Instead, the following was stated: "Subscriptions, Personal/Friendship Ads and Responses" and "Founder: Jewish Singles Services," with the address P.O. Box 247, Newton, MA 02159. That issue also included copyright marks and stated the materials in the publication were copyrighted with permission to be granted by the publisher, AJSF. According to Disputant Golden, changes noted in these last two publications concerning his role as publisher and that of AJSF were made without his knowledge or permission.

9. Disputant Golden held bulk mail permit 51269 for Jewish Singles at P.O. Box 247, Newton, MA 02159, during 1987 and 1988 (copies of payments by Golden for bulk mailings in 1987 and through March 1988 are in the record).

10. In February 1988 disagreements between the Disputants over the recent sporadic publication of the magazine, their relationship, and other matters resulted in a breakup of their prior relationship in jointly publishing a magazine. In a letter to Disputant Wolpoe in February 1988, Disputant Golden stated that he was dissolving their "partnership" and taking "back" his magazine.

11. Disputant Golden published magazine issues numbered 36-40 for March 1988 through July 1988. The cover pages of all these issues showed P.O. Box 247, Newton, MA 02159, as the return address. Disputant Golden moved to Sharon, MA, but retained the Newton post office box. The March and April issues indicated that subscriptions and ads were to be sent to P.O. Box 364, Sharon, MA 02067. However, the May and June issues indicated that they were to be sent to the Newton box.

12. The cover page for the 1988 March through May issues used a JEWISH SINGLES title format similar to that on the 31st to 35th issues. The June and July 1988 issues used a new format for the cover page and the title was changed back to JEWISH SINGLES SERVICE.

13. On March 28, 1988, Disputant Golden filed a copyright registration with the United States Copyright Office for JEWISH SINGLES MAGAZINE and identified previous or alternative titles as JEWISH SINGLES and JEWISH SINGLES SERVICE.

14. Sometime in 1988 prior to May 1988, the AJSF published as "Issue #205" an undated publication with the cover page title in a somewhat similar format as JEWISH SINGLES issues 31-35. However, for the first time the title included "AMERICAN JEWISH SINGLES FEDERATION, INC." above the word "SINGLES" and the word "MAGAZINE" below that word. The return address on the cover, and the inside ad and subscription form, listed AJSF at P.O. Box 728, Bloomfield, CT 06002.

15. In March 1988, Disputant Wolpoe sent change of address requests to the postmasters to forward to P.O. Box 728, Bloomfield, CT 06002, mail addressed to him personally, to the AJSF, and to JEWISH SINGLES MAGAZINE, at P.O. Box 247, Newton, MA, and apparently also at P.O. Box 364, Sharon, MA.

16. As the dispute between the parties was not resolved, some mail addressed to various names under which the magazines have been published by the Disputants and mail addressed to P.O. Box 247, Newton, MA, have been held by the postmaster.

17. Disputant Wolpoe claims all mail addressed to him, to the AJSF, and to JEWISH SINGLES MAGAZINE. He also seeks mail addressed to JEWISH SINGLES SERVICE, although he notes he did not request a change of address for such mail.

18. Disputant Golden does not claim any mail addressed to Disputant Wolpoe personally or to the AJSF. He does not question their right to use of P.O. Box 728, Bloomfield, CT 06002. He does claim mail addressed in the name of JEWISH SINGLES SERVICE, JEWISH SINGLES MAGAZINE, and JEWISH SINGLES, and requests such mail be delivered to him at P.O. Box 247, Newton, MA 02159.

CONCLUSIONS OF LAW

1. Charges of each Disputant against the other for breaches of contract or for other alleged wrongs should be resolved in another, appropriate forum. The determination in this mail dispute is only for the purpose of discharging the Postal Service's delivery of mail responsibilities in the absence of an agreement of the parties or a court order. See DMM 153.71-153.73.

2. DMM 153.52 provides that mail addressed to unincorporated firms or partnerships is to be delivered as addressed, as long as the business is being conducted under the same name at the same address, despite some members of the firm breaking off relations. Mail addressed to corporations is delivered as addressed or to an authorized agent, or in accordance with the order of the president of the corporation where there is disagreement among corporate officers or others connected with the corporation. DMM 153.51.

3. By the provisions of the DMM pertaining to post office boxes, the box customer (as defined in DMM 951.122) is the person signing the application as an individual or the organization on whose behalf the individual signs. The box customer may receive "any mail properly addressed to the box number" as long as "no improper or unlawful business is conducted." DMM 951.151, 951.152. Forwarding of mail addressed to the box for other persons is the responsibility of the box customer rather than the Postal Service and change of address orders may only be filed by the box customer. DMM 951.753.

4. In the absence of persuasive evidence that Disputant Golden relinquished control over P.O. Box 247, Newton, MA 02159, Disputant Golden is deemed to have been the authorized box customer of that post office box at all times during this controversy as it was rented by him and used for his business activities before, during, and after his association with Disputant Wolpoe and with the AJSF. He is also the box customer of P.O. Box 364, Sharon, MA 02067.

5. In the absence of contrary evidence, Disputant Wolpoe is deemed to be the box customer or representative of the box customer of P.O. Box 728, Bloomfield, CT 06002.

6. Disputant Golden has disclaimed interest in mail addressed in the name of Disputant Wolpoe or of the American Jewish Singles Federation, Inc., or AJSF. Therefore, mail addressed to Ron Wolpoe or to American Jewish Singles Federation, Inc., or AJSF at P.O. Box 247, Newton, MA 02159, or at P.O. Box 364, Sharon, MA 02067, may be forwarded to P.O. Box 728, Bloomfield, CT 06002. All other mail addressed to P.O. Box 247, Newton, MA 02159, and to P.O. Box 364, Sharon, MA 02067, regardless of the name of the addressee, may be released to Disputant Golden, who should forward any mail not belonging to him or his business.

7. If any mail addressed to JEWISH SINGLES, JEWISH SINGLES MAGAZINE, or JEWISH SINGLES SERVICE at P.O. Box 728, Bloomfield, CT 06002, is being held pending this dispute it may be released to Disputant Wolpoe, who should forward any mail belonging to Disputant Golden.

8. The attached mail delivery instruction to the Postmasters should be issued.