In the Matter of a Mail Dispute Between: 

 WILLIAM H. UTTERBACK and MAX V. PARIENTI

 P.S. Docket No. MD-70

 11/09/89

 Thompson, Joan B., Administrative Judge

 APPEARANCE FOR WILLIAM H. UTTERBACK:  William H. Utterback,  
 851 South Spring Street, Springfield, IL  62704-2617  

 APPEARANCE FOR MAX V. PARIENTI:  Carl R. Draper, Esq., Feldman &  
 Wasser, 1307 South Seventh Street, P.O. Box 2418, Springfield, IL  
 62705-2418  

The Postal Service's Office of Field Legal Services, Chicago, IL, transmitted this matter to this office for resolution pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965. The dispute concerns the delivery of mail addressed to Utterback Insurance Agency, 851 South Spring, Springfield, IL 62704-2617. The findings are based on documents transmitted from the Office of Field Legal Services and on subsequent submissions of the disputants.

1. Disputant Utterback, a sole proprietor, has conducted business in Springfield, Illinois, under the name of Utterback Insurance Agency and Utterback Insurance Company.

2. Disputant Parienti is an officer and shareholder in a business called Parienti & Carter, Ltd.

3. On August 1, 1989, Parienti & Carter, Ltd., as the buyer, and disputant Utterback, d/b/a Utterback Insurance Company, as the seller, entered into a purchase agreement. Section one of the agreement provided for the sale of certain business assets of the seller including all existing client files and lists (including accounting records), insurance agency contracts with eight insurance companies, and certain accounts receivable. Not included were listed personal property and real estate interests. The seller assumed the obligations arising or accruing because of the operation and use of the assets sold therein prior to the closing date of the contract and the buyer assumed those arising thereafter.

4. Section two of the agreement set forth the consideration for the agreement and section three set forth the closing date of August 1, 1989. In section four the seller made certain representations concerning agency contracts and other assets being sold.

5. In section five of the agreement, entitled "Covenant Not to Compete," the seller agreed not to sell insurance or be involved in the insurance business in Sangamon County, Illinois, for a period of three years, except he could submit prospective insurance applications to the buyer and receive an agreed to percentage of first term commissions when paid by the insurance company. Other contract provisions concerned payments, modification, the effect, and enforcement of the contract.

6. The buyer made the initial payment required by the contract and registered as a corporation and insurance firm with the State of Illinois.

7. Both parties executed a document to transfer billing responsibility for the same telephone number that had been used by Utterback Insurance Agency to Parienti & Carter, Ltd. The insurance companies were notified of the transfer of the insurance agency and new contracts were made with them and the buyer.

8. Disputant Utterback has remained at the 851 South Spring address and in documents submitted to this office continues to use a letterhead showing Utterback Insurance Agency, General Agent, Bill Utterback. The letterhead has the change in the office telephone number.

9. Parienti & Carter, Ltd., used the 851 South Spring address until it moved its offices to 2445 South Fifth Street, Suite 201, Springfield, IL 62703, on September 1, 1989.

10. On August 25, 1989, disputant Parienti signed a change of address order to have mail addressed to Utterback Insurance Agency delivered to the South Fifth Street address. Mail was delivered pursuant to that request until mid-September when disputant Utterback became aware of the change and objected to postal personnel claiming he was still doing a limited business at the Spring Street address and was entitled to the mail.

11. Thereafter, disputant Parienti complained that mail was not being forwarded and efforts were made by the Postal Service's manager of the Springfield, Illinois, Southwest Annex Station to resolve the dispute. These being unsuccessful, the matter was referred to the Office of Field Legal Services and subsequently to this office for resolution. The disputed mail is being held at the Springfield Southwest Annex Station pending resolution of this dispute.

12. Although the parties have expressed a willingness to have a receiver appointed to receive and distribute the disputed mail, they have not reached any agreement in that regard.

Disputant Utterback asserts that he is continuing in business at the Spring Street address and will be receiving checks and other matters to him for some time based on his insurance business. He asserts he did not sell the name Utterback Insurance Agency to the buyer, nor did he authorize the buyer to change the address or receive his mail.

Disputant Parienti asserts that Parienti & Carter, Ltd., has not received and does not claim any mail addressed to Mr. Utterback personally, but only requests the mail addressed to Utterback Insurance Agency. He argues that his company is entitled to the business mail addressed to the Utterback Insurance Agency by virtue of the transfer of certain assets of the Agency and by Mr. Utterback's covenant not to compete and to engage in the insurance business except through the auspices of Parienti & Carter, Ltd., as provided in section five of the purchase agreement.

1. Contrary to some assertions of the disputants, this proceeding does not determine the ownership of the mail or other legal rights between the parties. The determination in a mail dispute proceeding brought under 39 C.F.R. Part 965 is for the purpose of enabling the Postal Service to carry out its responsibilities to deliver the mail.

2. Also, contrary to assertions by disputant Utterback, mail addressed to him personally is not in dispute. Only mail addressed to Utterback Insurance Agency is in dispute.

3. There was no specific provision regarding mail in the purchase agreement. However, the buyer, Parienti & Carter, Ltd, assumed the obligations of and rights in the insurance business after the purchase and the seller agreed not to engage in insurance business for three years except through the buyer. A reading of the entire agreement compels the conclusion that mail addressed to Utterback Insurance Agency at 851 South Spring, Springfield, IL 62704-2617, should be delivered to the buyer, Parienti & Carter, Ltd., as requested, at 2445 South Fifth Street, Suite 201, Springfield, IL 62703-3497. This is consistent with the action of the parties in having the telephone number of the Utterback Insurance Agency transferred to the buyer.

4. Accordingly, the attached mail delivery instruction to the Station Manager should be issued. However, nothing herein would preclude an agreement by the parties to have the mail delivered to a third party. Without such an agreement, it shall be the obligation of Parienti & Carter, Ltd., to determine if any of the mail delivered to it belongs to disputant Utterback.