Appeal of P.S. Docket No. MD-52 -- THERESA SCANDONE and JAMES K. CHAPMAN


 In the Matter of a Mail Dispute Between:

 THERESA SCANDONE
 and
 JAMES K. CHAPMAN

 P.S. Docket No. MD-52

 04/24/89

 Grant, Quentin E., Chief Administrative Law Judge

 APPEARANCE FOR THERESA SCANDONE:
 Russell S. Babcock, Esq.,
 Posner & Law,
 1400 Sixth Avenue, Suite 104,
 San Diego, CA 92101-3243 

 APPEARANCE FOR JAMES K. CHAPMAN:
 Ross J. Schwartz, Esq.,
 Post, Kirby, Noonan & Sweat,
 1400 Imperial Bank Tower,
 701 B Street,
 San Diego, CA 92101-8199

INITIAL DECISION

In this mail dispute docketed pursuant to Domestic Mail Manual (DMM) § 153.72, the disputants claim the right to delivery of mail addressed to the California corporation, Chapman, Loban and Scandone at 225 Stevens Avenue, Suite 101, Solana Beach, CA 92075-2058. The disputants have filed initial submittals pursuant to § 965.5 of the Rules of Practice but have not filed timely comments pursuant to § 965.6.

This decision is based on the submittals together with documentation furnished to the postmaster and other postal officials before the dispute was referred to this Department.

FINDINGS OF FACT

1. In December 1987 or January 1988, disputants James K. Chapman and Theresa H. Scandone formed the California corporation Chapman and Scandone, each owning 10,000 shares of Class A Common Stock thereof, such shares constituting all of the capital stock of the corporation. The principal office and place of business of the corporation was at 225 Stevens Avenue, Suite 101, Solana Beach, CA 92075.

2. Ms. Scandone was elected president and Mr. Chapman secretary of the corporation.

3. At some undisclosed date in 1988, Thomas A. Loban became a director of the corporation and the corporate name was changed to Chapman, Loban and Scandone.

4. On December 9, 1988, Mr. Chapman, as secretary of the corporation, issued a notice of a special meeting of the board of directors to be held on December 16, 1988, at the principal office, to effectuate the dissolution of the corporation in accordance with a resolution adopted by the shareholders on November 7, 1988. A copy of the notice was sent to Ms. Scandone and her counsel.

5. A special meeting of the board of directors was held on December 16 in accordance with the notice. Mr. Chapman and Mr. Loban attended the meeting. Ms. Scandone was not present. At the meeting it was announced that a certificate of dissolution of the corporation, executed by Messrs. Chapman and Loban as stockholders, had been filed with the Secretary of State on November 14, 1988, that the corporation was, as a result, in a state of dissolution and that its business should be limited, essentially, to winding up its affairs and distributing net assets to shareholders.

6. At the meeting a discussion was had concerning certain difficulties caused by Ms. Scandone in connection with the dissolution and the board voted to remove her as president of the corporation, to elect Mr. Chapman as president and Mr. Loban as secretary.

7. Shortly after the December 16 meeting a dispute arose between Mr. Chapman and Ms. Scandone as to delivery of mail addressed to the corporation, each party claiming the right, as president, to direct such delivery.

8. Efforts by the parties to resolve the dispute through counsel have failed. The mail is being held, pending final decision in this proceeding, by the postmaster at Solana Beach.

CONCLUSIONS OF LAW AND DISCUSSION

The preponderance of the evidence in the record before me supports the conclusion that disputant James K. Chapman is the president of the corporation. The submittal of disputant Scandone only suggests impropriety in certain actions taken by Mr. Chapman with respect to corporate assets and irregularity in the meeting of the board of directors at which she was removed and he was elected as president. She does not deny that she and her attorney received notice of such meeting and she does not explain her failure to attend. Ms. Scandone's submittal lacks sufficient supporting evidence by way of copies of articles of incorporations, bylaws, or otherwise to create any serious factual issue as to the regularity of Mr. Loban's becoming a shareholder and director of the corporation and Mr. Chapman's election as president.

Under DMM § 153.51, where disagreement over delivery of mail addressed to a corporation arises among corporate officers and others connected with the company, the mail is to be delivered in accordance with the order of the president. Consequently, Mr. Chapman has authority to direct delivery of the mail in question.

The purpose of resolving the mail dispute in this proceeding is to determine which disputant, under applicable postal regulations, has the right to delivery of the mail in question. This decision does not determine the question of ownership of the mail or entitlement to it. Thus, if Mr. Chapman receives any mail clearly intended for Ms. Scandone, he will be responsible for seeing that it is forwarded to her.

The attached proposed mail delivery order should be issued.