Appeal of P.S. Docket No. MD-90 -- FORREST E. STEWART and ROBERT GRADY

 In the Matter of a Mail Dispute Between: 

 FORREST E. STEWART
 and
 ROBERT GRADY

 P.S. Docket No. MD-90

 1/7/91

 Lemert, James E. Administrative Judge

 APPEARANCE FOR FORREST E. STEWART:   Forrest E. Stewart, prose, Suite 114,
 8039 Callaghan Road, San Antonio, TX  78230-4781 

 APPEARANCE FOR ROBERT GRADY: Robert L. Grady, pro se, 1111 Barton Street,
 Apt. 1, Corpus Christi, TX  78401-5137

INITIAL DECISION

This mail dispute was initially docketed based on a letter/petition from disputant Forrest E. Stewart, who sought a ruling concerning the delivery of mail addressed to Alamo Aviation, Inc. and Nueces Aviation at Rt. 2, Box 189A, Robstown, TX 78230-9515. Based on the material in the file at the time of docketing, it did not appear that the dispute had been referred to field counsel for an attempt at informal resolution. Accordingly, the dispute was remanded to the Postmaster and field counsel in the Southern Division while further proceedings before the Judicial Officer Department were suspended. Through telephone communications it was subsequently discovered that field counsel had previously been involved in the dispute. Additional papers relevant to the dispute were forwarded by the Postmaster and field counsel, and have become a part of the record of this mail dispute.

Initially, after notices were sent to the parties from the Recorder, United States Postal Service, only submittals from disputant Stewart were filed, and mail sent to disputant Grady was returned to the Recorder's Office. As a result of documents subsequently provided by the Postmaster, it was discovered that disputant Grady had filed a forwarding order change notice with an East St. Louis, IL address, which until then was unknown to this Office. Therefore, disputant Grady was afforded a further opportunity to file a submittal expressing his position. Despite this opportunity, disputant Grady has not filed a submittal.

Based on the submittals of disputant Stewart and the information provided by the Postmaster and field counsel, the following findings are made.

FINDINGS OF FACT

1. Disputant Forrest E. Stewart is the owner and president of Alamo Aviation, Inc., and has been during the past several years. Disputant Grady has had no interest in that corporation.

2. Nueces Aviation is the other entity involved at the address in issue, Rt. 2, Box 189A, Robstown, TX 78380-9515. From the documents available in the record, it appears that Nueces Aviation was not incorporated. At one time Nueces Aviation was a partnership comprised of Alamo Aviation, Inc. and Klipspringer 8, Inc., and executed a lease agreement dated March 6, 1987, with Nueces County, TX for property at the Nueces County Airport. Executing the lease on behalf of the partnership were disputant Stewart as president of Alamo Aviation, Inc. and Richard E. Schaefer as president of Klipspringer 8, Inc.

3. Shortly thereafter Klipspringer 8, Inc., (and Richard E. Schaefer) ceased to have any interest in Nueces Aviation.

4. Although no copy has been submitted, another partnership agreement involving Alamo Aviation and Nueces Aviation, dated June 19, 1988, is referred to in the record. In submittals filed by disputant Stewart disputant Grady is referred to as an "ex-partner." Therefore, during a period of time after June 19, 1988, disputant Grady was a partner in Nueces Aviation. When his partnership interest expired is not clear from the record, although disputant Stewart states he was "expelled from the partnership" on November 27, 1988. On that date Alamo Aviation withdrew from the partnership.

5. Records from the Controller of Public Accounts of the State of Texas show that a limited sales tax number was issued to Richard Schaefer and Forrest Stewart (partnership) for Nueces Aviation at the Nueces County Airport, with an address of Rt. 2, Box 189A, Robstown, TX 78380, and that the permit status was active between March 1, 1987, and September 30, 1987.

6. Records of the Controller of Public Accounts of the State of Texas also show a limited sales tax number issued to Robert L. Grady (Sole Owner), P. O. Box 767, Robstown, TX 78380, for Nueces Aviation at the Nueces County Airport, and that the permit status was active between January 1, 1990, and July 2, 1990.

7. Although disputant Grady in filing his forwarding order change notice on July 18, 1990 (after this dispute was docketed), referred to the address in issue, there is no evidence that disputant Grady, during his previous involvement with Nueces Aviation, was authorized to use P. O. Box 189A, Rt. 2, Robstown, TX 78380-9515. Rather, disputant Grady used P. O. Box 767 in Robstown, TX in connection with his business involving Nueces Aviation.

8. This dispute does not involve the issue of delivery of mail to P. O. Box 767, Robstown, TX 78380.

CONCLUSIONS OF LAW

1. Since disputant Grady has failed to file a submittal, he is in default and the mail should be delivered in accordance with the instructions of the opposing party. 39 C.F.R. § 965.7.

2. All mail delivered to Rt. 2, Box 189A, Robstown, TX 78380- 9515, which is addressed to Alamo Aviation, Inc., or to Nueces Aviation, should be delivered in accordance with the direction of disputant Stewart.

3. This decision does not resolve the question of ownership of the mail in dispute, but only determines which party has the right to delivery of the mail as addressed.