In the Matter of a Mail Dispute Between:

 ROGER O. WETHERHOLT THE WETHERHOLT GALLERIES
 and
 HOWARD A. GRAD, PRESIDENT,

 P.S. Docket No. MD-139

 03/19/92

 Grant, Quentin E., Chief Administrative Law Judge

 APPEARANCE FOR DISPUTANT ROGER O. WETHERHOLT THE WETHERHOLT GALLERIES:
 Roger O. Wetherholt, 3050 K Street, N.W..  Washington, DC  20007-5148 

 APPEARANCE FOR DISPUTANT HOWARD A. GRAD GALLERY MARKETING, INC.,
 Howard A. Grad, 812 Great Cumberland Rd., McLean, VA 22102-1008

The Office of Field Legal Services, Philadelphia, PA, has forwarded this mail dispute for resolution pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965.

Both parties have filed sworn submittals pursuant to $S965.5 of the Rules of Practice. Neither party has filed comments on the other's submittal.

Examination of the file discloses that no hearing is necessary to resolve the dispute.

The following findings of fact are based on the submittals of the parties.

1. The disputants are Roger O. Wetherholt, The Wetherholt Galleries, Inc. (Gallery), 3050 K Street, NW, Washington, DC and Howard A. Grad, Gallery Marketing, Inc. (Marketing), 812 Great Cumberland Road, McLean, VA, formerly and at the time this dispute arose at 8133 Leesburg Pike, Vienna, VA 22182-2706. The mail in dispute is addressed to Wetherholt Galleries at 8133 Leesburg Pike, #550, Vienna, VA 22182-2706.

2. On May 30, 1991, Marketing, then located at 8000 Towers Crescent Dr., Vienna, VA, entered into a Marketing Agreement (Agreement) with Gallery for the initial term June 1, 1991 - May 31, 1993. Gallery's place of business was at the time located at 52 O Street, Washington, DC 20001. The Agreement contained the following pertinent provisions:

Exclusive Agent. MARKETING shall be the sole and exclusive marketing and/or sales agents for the GALLERY regarding obtaining paying customers and/or paying exhibitors ("CONTRACT ARTISTS") for the GALLERY.

The Services to be furnished ("SERVICES") the GALLERY by MARKETING include representing the GALLERY for the purposes of selling, marketing, locating, and/or obtaining customers (CONTRACT ARTISTS), or attempting to sell, market, locate, and obtain CONTRACT ARTISTS for the GALLERY.

MARKETING will operate as the exclusive sales and marketing agent of the GALLERY, The GALLERY will, as a condition of any exhibition, display, or sale of an artists work, require that the artist first become and remain a CONTRACT ARTIST in good standing of the GALLERY, except for NON-PAYING ARTISTS. The Gallery agrees that it will not show or exhibit non-CONTRACT

ARTISTS or non NON-PAYING ARTISTS. All fees resulting from an individual becoming a CONTRACT ARTIST to the GALLERY will be paid directly to MARKETING, who will remit the "GALLERY PORTION" (Gross Revenues divided by 2) to the GALLERY.

All payments from new customers and/or renewing customers will be sent to MARKETING, at their corporate offices located at 8000 Towers Crescent Drive, Suite 600, Vienna, VA 22180, and deposited in a joint account to be established by MARKETING and the GALLERY. The GALLERY and MARKETING shall each have signature authority on this bank account.

During the term of this agreement, or any renewals thereof, GALLERY authorizes MARKETING to use its name and to represent itself as the GALLERY in the performance of its SERVICES. MARKETING is specifically authorized to advertise the SERVICES to be performed by the GALLERY in all sales and marketing advertising, literature, telecommunications, and any other method by which MARKETING decides to obtain CONTRACT ARTISTS for the GALLERY.

3. The Agreement provided that Gallery had no right to terminate it for a period of 12 years except for non-renewal at the end of a two year term.

4. On or about July 1, 1991, Marketing commenced occupancy of Suite 550, 8133 Leesburg Pike, Vienna, VA under lease agreement dated June 24, 1991.

5. According to Gallery's submittal letter, dated January 24, 1992, Gallery's staff moved into Suite 550 to help "kick start" the operation reflected in the May 30 agreement. Mail generated by implementation of the Agreement and intended by the parties to be received and handled by Marketing under the Agreement was addressed to Wetherholt Galleries at 8133 Leesburg Pike, #550, Vienna, VA 22182. The submittals show no objection by Gallery to Marketing's receipt and handling of mail so addressed until late in 1991 when this dispute arose.

6. On or about November 1, 1991, serious differences arose between Gallery and Marketing about Marketing's performance under the Agreement and Gallery's staff moved out of Suite 550. By letter dated November 2, 1991, Gallery declared Marketing to be in breach of the Agreement and, among other things, demanded that Marketing forward any mail addressed to Wetherholt Galleries to 3050 K Street, NW, Washington, DC 20007. At about the same time, Gallery filed a change of address form at the Vienna Post Office.

7. This mail dispute arose when Marketing countermanded Gallery's change of address order.

8. Although Gallery's staff was present at Suite 550, 8133 Leesburg Pike, to help "kick start" operations under the Agreement, Gallery, as a separate and distinct entity, has not done business at that address. Mail was addressed to Gallery there only because of the Agreement. Gallery's place of business was at 52 O Street, Washington, DC 20001.

The general rule is that the addressee may control delivery of his mail. DMM § 153.11(a). In this case, however, provisions of the Marketing Agreement between the disputants prevail. The provisions of the Agreement set forth in Finding No. 2, above, give Marketing the right to use Gallery's name to receive mail generated by the Agreement at Marketing's place of business. As found in Finding No. 3, the Agreement deprives Gallery of the right to terminate it for a period of 12 years (with an exception not relevant to this dispute). Therefore, unless the parties agree, or a Court orders, otherwise, Marketing has the right to direct delivery of the disputed mail.

This decision determines only the right to direct the delivery of the mail in dispute, not the ownership thereof. Marketing must forward to Gallery any mail it receives belonging to Gallery.