In the Matter of a Mail Dispute Between:

 JANET M. KELL
 and
 OLIVER C. OVERLANDER, II

 P.S. Docket No. MD-89

 7/12/90

 Mason, Randolph D., Administrative Law Judge

 APPEARANCE FOR JANET M. KELL: Janet M. Kell, Pro Se, P. O.  
 Box 168 , Marietta, PA  17547-0168  


 APPEARANCES FOR MAYOR OVERLANDER: Mayor Oliver C. Overlander,
Pro Se; 

 Ben Thompson, President, Marietta Borough Council, 111 E. Market
Street, 

 Marietta,  PA 17547-0167

This mail dispute proceeding was docketed under Domestic Mail Manual § 153.72, which requires Regional Counsel to forward certain unresolved mail disputes to this Department for decision. Both disputants filed written submittals under 39 C.F.R. § 965.5. The dispute concerns delivery of mail addressed to P. O. Box 4, Marietta, PA. The following findings of fact and conclusions of law are based upon the submittals and exhibits attached thereto:

1. Under Pennsylvania law, a volunteer fire company in any town or borough may nominate any of its members as Special Fire Police. Such nominees must be confirmed by the Mayor before appointment. Generally speaking, their duties include traffic and crowd control at fires, emergencies, or other functions at the request of the governing body of the municipality. 35 Penn. Stat. § 1201.

2. On October 12, 1988, the Marietta Special Fire Police formed and became a duly constituted unincorporated association and adopted a Constitution and Bylaws. The stated purpose of the Marietta Special Fire Police Association was identical to that of the Special Fire Police, i. e. traffic control, crowd control, and security at fires and public emergencies as designated by the Mayor, Chief of Police or Fire Chief. Although not an officer of the Association, the Mayor of Marietta was the head of the Advisory Committee and he continued to exercise his statutory authority of confirming members of the Special Fire Police and giving assignments to the group (Exh. G).

3. The Association's Constitution provided that in the event of dissolution of the Association, all equipment, uniforms, and supplies will become the property of the Borough of Marietta. Exh. G, Article X.

4. In August of 1989 the Association rented Post Office Box 4, Marietta, PA and ceased having its mail sent to the Marietta Borough Hall (Exh. E).

5. On September 13, 1989, the Marietta Borough Council recognized the Special Fire Police as a separate unit from the Pioneer Fire Company under the jurisdiction of the Mayor. The Council reaffirmed that decision at its meeting of March 13, 1990.

6. The Association was largely self-supporting, and its operations in 1990 were paid for with money which it raised. It made independent decisions regarding the expenditure of money, although the Mayor was expected to co-sign most requisition requests submitted to the Borough.

7. Subsequently, the members of the Special Fire Police had a dispute with the Mayor, Disputant Overlander.

8. After notification to its members (Exh. I), and distribution of ballots, on March 23, 1990 the Marietta Special Fire Police Association held a special meeting for the purpose of dissolution of the Association. The eight members who attended unanimously voted for dissolution, and no dissenting ballots were cast by those who did not attend. Exh. J, K.

9. As stated in the minutes of the above meeting, "all accounts were settled and all necessary business conducted for the dissolution." The Association also decided that the Secretary, Disputant Janet Kell, would be responsible for receiving and answering any Association mail which may be received thereafter at Post Office Box 4, Marietta, PA (Exh. J, K). P. O. Box 4 remained the property of the Association after dissolution for the purpose of winding up its affairs since it was not the type of property listed in the Constitution which reverted to the Borough upon dissolution.

10. By letter dated April 2, 1990, Disputant Kell wrote a letter "To Whom it May Concern" under the "MARIETTA SPECIAL FIRE POLICE" letterhead, announcing the dissolution of the Marietta Special Fire Police Association. The letter was published in the newspaper under the headline "Marietta Fire Police Disband." The Association also used this letterhead on other documents, such as the minutes of meetings.

11. After the dissolution, several of the former Association members continued to act as Special Fire Police under the immediate direction of Mayor Overlander, and the latter has recruited additional members. The group is not presently constituted as an association and has no constitution or bylaws.

12. Disputant Overlander takes the position that since Dis- putant Kell is no longer affiliated with the Marietta Special Fire Police, she and her husband should not have access to P. O. Box 4. Although she resigned from the Special Fire Police, she clearly has an important role in winding up the affairs of the Association, which rented the box.

1. Mayor Overlander contends that he is entitled to delivery of all mail addressed to P. O. Box 4 on the ground that he has statu- tory jurisdiction over the Special Fire Police. He argues that the Marietta Special Fire Police Association is simply the Special Fire Police and that the Association has never been dissolved. Since he is an elected official he does not consider himself bound by the constitution, bylaws, and dissolution of the Association.

2. On the other hand, Disputant Kell argues that the Marietta Special Fire Police was a properly constituted unincorporated asso- ciation under Pennsylvania law with a Constitution and Bylaws. As determined above, the Association was duly dissolved by the members on March 23, 1990 and Kell was appointed to wind up the affairs of the Association. She contends that she is entitled to delivery of the mail addressed to the Association's P. O. Box 4 so that she can perform the latter function.

3. First, it is determined that the Association was duly constituted as an unincorporated association under Pennsylvania law and that it and its members were bound by its Constitution and Bylaws. Although the Mayor is the ultimate authority for confirmation of Special Fire Police and the assignment of work, this does not diminish the separate authority of the Association over many other matters. The Association was clearly a separate entity for the purpose of receiving mail. It was duly dissolved by a unanimous vote of its membership at a special meeting for that purpose for which notice was given. 7 C.J.S. associations § 56.

4. After the dissolution, those members who chose not to resign continued to act as Special Fire Police. This informal group is now composed of some former members and new members, all operating under the immediate direction of the Mayor. Thus the dissolution of the Association did not dissolve the Special Fire Police provided by statute.

5. When two entities who have used the same or confusingly similar names and mailing addresses enter conflicting orders at the post office for the delivery of the same mail, delivery will be made to the one which is the most likely recipient intended by senders. Jack Malken, MD-16 (I. D. June 2, 1988); see also, 1 Op. Solic. P.O. Dep't No. 344 at 860 (1883); 2 Op. Solic. P.O. Dep't No. 764 at 548 (1888). In the instant case, the men and women who were members of the Association constituted the entire force of the Marietta Special Fire Police. They were referred to interchangeably as the Special Fire Police Association or simply the Special Fire Police. Since the Association has been dissolved and had settled its accounts at the time of dissolution, it is likely that the bulk of the mail which is addressed to P. O. Box 4 is intended for the currently operating group of Special Fire Police.

6. Accordingly, all mail currently addressed to Marietta Special Fire Police or Marietta Special Fire Police Association at P. O. Box 4 should be delivered in accordance with the instructions of Mayor Overlander, who is responsible for the current Marietta Special Fire Police. However, any mail received by the Mayor under this order which relates to winding up the affairs of the Association is the property of the Association and should be forwarded to Disputant Kell.

7. Resolution of this mail dispute determines only who is entitled to delivery of the mail, and is not intended to be dispositive of the question of ownership of the mail.

8. The attached mail delivery order should be issued.