September 6, 1989

In the Matter of a Mail Dispute Between

DAVID L. ACKLEY

and

LEN L. MELNYCHENKO

P. S. Docket No. MD-65

APPEARANCE FOR DAVID L. ACKLEY:                                               

Edward W. Goehler, Esq.

Cohen Law Offices

301 Cortland Savings Bank Bldg.

P.O. Box 170

Cortland, NY  13045-0170

APPEARANCE FOR LEN L. MELNYCHENKO:                         

Len L. Melnychenko

73 Weymouth Lane

Johnson City, NY  13790-9788

POSTAL SERVICE DECISION

            Disputant Melnychenko has filed an appeal from the Initial Decision of an Administrative Judge which holds that mail addressed to Meltron Manufacturing, Inc., is to be delivered in accordance with the instructions of David L. Ackley, president of the corporation.

Background

            This proceeding was referred to the Judicial Officer Department by Regional Counsel pursuant to DMM §153.72.  Disputants Ackley and Melnychenko each claim the right to delivery of all mail addressed to Meltron Manufacturing, Inc.  The presiding Administrative Judge issued an Initial Decision in which he determined that the mail in dispute should be delivered in accordance with the instructions of David L. Ackley.  Disputant Melnychenko filed a timely appeal.  Disputant Ackley filed a reply in accordance with an Order dated September 1, 1989.

Discussion and Conclusion

            Disputant Melnychenko argues that he has the right to delivery of the mail addressed to Meltron Manufacturing, Inc. because, contrary to the findings of the Administrative Judge, Disputant Ackley is no longer president of the corporation.  Disputant Melnychenko contends that, as the majority shareholder, he removed Disputant Ackley from the position of president of the corporation.  In response, Disputant Ackley contends that no shareholder's meeting removing him from office was ever held, that Disputant Melnychenko had no authority to call a unilateral meeting or remove Disputant Ackley from office and that he, Disputant Ackley, is still president and treasurer of Meltron Manufacturing, Inc.

            Disputant Melnychenko relies on a newly filed document purporting to be minutes of a meeting at which Disputant Ackley was removed from office.  Since Disputant Melnychenko has not shown good cause why this evidence was not presented to the Administrative Judge, it will not be considered on appeal.  See Richard E. Compass, P.S. Docket No. MD-47 at 2 (P.S.D. May 2, 1989).  Even if this evidence was considered, Disputant Melnychenko has not persuasively demonstrated that Disputant Ackley is no longer president of Meltron Manufacturing, Inc.  Moreover, Disputant Melnychenko has not otherwise shown that the Initial Decision is clearly erroneous.  Accordingly, the Judicial Officer declines to exercise his discretion to grant review of the Initial Decision.  The Initial Decision is therefore the final agency decision and the attached directive to the Postmaster is hereby issued.

                                                                                    James A. Cohen

                                                                                    Judicial Officer