May 4, 1989

In the Matter of a Mail Dispute Between:

LUIS TREVINO

and

IRWIN WEINBERG

P.S. Docket No. MD-54

APPEARANCE FOR LUIS TREVINO:

Luis Trevino, pro se

15 N. Arlington Heights Road

Arlington Heights, IL  60004-5662

APPEARANCE FOR IRWIN WEINBERG:

Irwin Weinberg, pro se

516 W. Northwest Highway

Mt. Prosepect, IL  60056-2315

INITIAL DECISION

            This mail dispute has been transmitted to this office for resolution pursuant to Domestic Mail Manual (DMM) §153.72 and 39 C.F.R. Part 965.  The dispute involves conflicting orders for delivery of mail addressed to Save on Printing, 15 N. Arlington Heights Road, Arlington Heights, IL  60004.  The findings of fact below are based on the documents attached to the letter dated March 20, 1989 by which the case was transmitted to this office from the Office of Field Legal Services, Central Region Office, USPS, and on disputant Weinberg's sworn statement dated April 10, 1989 constituting his submittal pursuant to §965.5 of the rules of practice.  Disputant Trevino has made no submittal pursuant to §965.5 and no comments on Mr. Weinberg's submittal pursuant to §965.6.  Certified mail return receipts show that Mr. Trevino received from the Recorder the "Notice of Docketing and Submittal Due Date," a copy of the rules of practice, and a copy of Mr. Weinberg's submittal, the latter on April 14, 1989.

FINDINGS OF FACT

            1.         Prior to July 8, 1988, disputant Luis Trevino conducted a printing business, wholly owned by him, known as Save on Printing at 15 North Arlington Heights Road, Arlington Heights, Illinois  60004.  He received all mail addressed to Save on Printing at that address,

            2.         Mr. Trevino and Jesse O. Arias incorporated Save on Printing in the State of Illinois in 1981.  Other than a business card with his name as president thereon, he has furnished no evidence that he was elected president thereof.  He has furnished no evidence to show that the incorporation of the business was anything more than pro forma.  He appears to have run the business as a sole proprietorship, following incorporation, observing, so far as the record discloses, none of the formalities of corporate existence and operation under Illinois law (Smith-Hurd Illinois Annotated Statutes, Ch. 32, Corporations).

            3.         On or about July 8, 1988, Mr. Trevino and Save on Printing, Inc. sold to the Pace Group, Inc. (Pace) the assets of the business.  Also on or about July 8, 1988, Pace, as employer, and Mr. Trevino, as employee, entered into an employment agreement whereunder Trevino was employed as a regional marketing manager of Pace.

            4.         From on or abut July 8, 1988, to on or about Novembr 14, 1988, Pace, as Save on Printing, conducted a printing business at the same address receiving all mail addressed to Save on Printing at that address.  During that period Trevino worked as an employee of the printing business in the capacity of outside salesman.  Trevino did not retain any interest in Save on Printing.

            5.         On November 14, 1988, Pace sold the business known as Save on Printing to disputant Irwin Weinberg and Brian Weinberg.  Contemporaneously with the sale, Pace and Trevino terminated their employment agreement so that Trevino could be employed by the Weinbergs.  On November 12, 1988, the Weinbergs, d/b/a Diamond Printing II, as employer, and Trevino, as employee, entered into an agreement whereunder Trevino was employed by them as regional marketing manager.

            6.         From November 14, 1988, the Weinbergs operated the business know as Save on Printing at the same Arlington Heights address, receiving and opening all mail sent to Save on Printing at that address.

            7.         At no time from July 14, 1988 to late February, 1989, during the operation of the printing business by Pace or the Weinbergs at that address did Mr. Trevino object to their use of the name Save on Printing at the same address and their receiving the mail addressed to Save on Printing thereat.

            8.         Trevino terminated his employment by the Weinbergs during February, 1989 and for reasons of economic necessity, the Weinbergs moved Save on Printing from the Arlington Heights address to 510 Northwest Highway, Mount Prospect, Illinois  60056.  On or about February 24, 1989, Irwin Weinberg filed with the post office an order for change of address of mail addressed to Save on Printing at the Arlington Heights address to the Mount Prospect address.

            9.         Disputant Trevino then initiated this dispute by informing the Arlington Heights post office that he was entitled to receive mail addressed to Save on Printing at the Arlington Heights address, although he had not used it as his business address since the sale of the business to Pace in July 1988.

DISCUSSION AND CONCLUSIONS OF LAW

            1.         Disputant Trevino is in default for failure to file a submittal as required by §965.5 of the Rules of Practice.  Under §965.7, the default alone is ground for deciding the dispute in favor of Mr. Weinberg.

            2.         Beyond the default, however, I find no written claim by Mr. Trevino stating his grounds for delivery of the disputed mail to him.  The documents he delivered to the post office in Arlington Heights, IL do not support a finding that Save on Printing was a legally viable corporation or that Mr. Trevino was the president thereof on July 8, 1988, when the assets of Save on Printing were sold to the Pace Group or that he is president of a corporation with that name now and, as such, entitled to delivery of the disputed mail.

            3.         However, I find no reason to doubt that Mr. Trevino was at the time of sale of assets to the Pace Group, the sole owner of a business known as Save on Printing and, as such, had authority to sell the assets.  Neither the name Save on Printing nor the goodwill of such business were among the listed assets sold to Pace.  It seems clear, however, from the circumstances set forth in the findings of fact, above, that Mr. Trevino intended that such name be included in the sale.  Of particular importance in this connection, is the evidence of his employment for a period of about 8 months as regional marketing manager by Pace and, later, the Weinbergs while they operated the business as Save on Printing at the Arlington Heights location and Mr. Trevino's failure, during that period, to make any claim to delivery of mail addressed to Save on Printing.

            4.         Disputant Weinberg as one of the owners of the business known as Save on Printing has the right to direct the delivery of mail addressed to that name at 15 N. Arlington Heights Road, Arlington Heights, IL  60004.

            5.         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. Weinberg receives any mail clearly intended for Mr. Trevino, he will be responsible for seeing that it is forwarded to him.

            6.         The attached proposed mail delivery order should be issued.

Quentin E. Grant

Chief Administrative Law Judge