Appeal of P.S. Docket No. MD-145 -- NANCY AND GENE ALMOND and SANDRA J. AND CARL R. TALLEY

 In the Matter of a Mail                ) May 18, 1992
 Dispute Between:                       )
                                        )
 NANCY AND GENE ALMOND                  )
                                        )
 and                                    )
                                        )
 SANDRA J. AND CARL R. TALLEY           ) P. S. Docket No. MD-145

 APPEARANCE FOR NANCY AND 
 GENE ALMOND:                           Gene J. Almond, Pro Se
                                        236 Oak Street
                                        Pottstown, PA  19646-5355

 APPEARANCE FOR SANDRA J. AND 
 CARL R. TALLEY:                        Sandra J. Talley, Pro Se 
                                        384 S. Reading Avenue
                                        Boyertown, PA  19512-1812

INITIAL DECISION

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 "Target Pest Control," P. O. Box 911, Pottstown, PA, 19464-0911. The following findings of fact and conclusions of law are based upon the submittals and exhibits attached thereto:

FINDINGS OF FACT

1. Sandra J. Talley and Nancy Almond purchased stock of Target Pest Control, Inc., on June 8, 1988. The corporation

received mail at P.O. Box 911, Pottstown, PA. Sandra was president of the corporation, and Nancy, secretary; the directors were their husbands, Carl R. Talley, Jr., and Disputant Gene Almond.

2. On June 26, 1990, Sandra and Nancy, as sole shareholders of the corporation, took action to dissolve Target Pest Control,Inc., with the intent that the exterminating business would be carried on by a partnership consisting of Carl Talley and Gene Almond. The latter executed a partnership agreement on the same date and took over the assets and liabilities of the corporation. Although the proper documents were prepared and executed by Sandra Talley and Nancy Almond to effectuate the dissolution of the corporation, their attorney failed to file the documents with the Commonwealth of Pennsylvania.

3. The partnership agreement provided that the partners would share equally in the partnership profits and liabilities and would do business as "Target Pest Control" at 384 South Reading Avenue, Boyertown, PA, the Talley's residence. The corporation formally authorized the partners to use the name "Target Pest Control Co," and, as also evidenced by the attempted withdrawal of the fictitious name registration, agreed not to use that name to solicit business. On July 9, 1990, the partners registered with the Commonwealth of Pennsylvania to operate under that fictitious name.

4. Since all decisions of the partnership were to be by majority vote, it was necessary for both partners to agree on each decision. During the life of the partnership, each of the partners had a key to P.O. Box 911.

5. In June of 1990, Mr. Almond received a check made payable to Target Pest Control, Inc., and subsequently deposited the check into his own account under the name "Almond Pest Control."

6. Thereafter, Mr. Talley withdrew from the partnership and sought its dissolution, which was accomplished in July or August of 1990.^1/

7. Mrs. Talley closed P. O. Box 911 on July 2, 1991. The next day, Mrs. Talley, in her capacity as President of the corporation, instructed the Postmaster to forward all mail addressed to P.O. Box 911 to her home address, and to deny any other party the right to delivery.

8. Mr. Almond reopened P.O. Box 911 in September of 1990 in the name of the partnership, Target Pest Control, and gave as the address of the boxholder 384 S. Reading Ave., Boyertown, PA 19152, which is the principal place of business for the

partnership, set forth in the agreement. Mr. Almond offered Mr. Talley a key to the box, but the latter refused.

9. The Talley's are presently operating as Talley and Sons Pest Control. Mr. Almond is now doing business as Almond Pest Control.

10. Mr. Almond contests the forwarding of the partnership mail to the corporation as requested by Mrs. Talley. Mr. Talley does not seek to receive any of the disputed mail in his capacity as a former partner, and Mrs. Talley asserts that all issues have been resolved between the partners.

CONCLUSIONS OF LAW

1. Although the corporate dissolution documents were not filed with the Commonwealth of Pennsylvania, the corporation clearly ceased doing business in June of 1990. The partnership acquired the name "Target Pest Control," took over the corporation's assets and liabilities, and operated until its dissolution in the summer of 1991.

2. Mrs. Talley takes the position that the corporation is still technically in existence since the dissolution documents were not filed with the state, and that as the president of the corporation, she is entitled to mail addressed to Target Pest Control. On the other hand, Mr. Almond seeks the disputed mail on behalf of the partnership, which legally took over the

assets and liabilities of the corporation and received the right to use the name Target Pest Control.

3. The partnership operated as Target Pest Control for at least a year after the corporation ceased doing business. Since the partnership was the only entity in business, the bulk of the mail addressed to Target Pest Control during the latter period was intended for the partnership. This entitled the partnership to delivery of the mail. Moreover, the acquisition of the name also entitled it to the mail addressed to that name.

4. When the partnership dissolved, it did not terminate for all purposes. In this regard, a partner is entitled to wind up the partnership affairs and receive partnership mail to accomplish that end. Thus, after the dissolution of the partnership, it was entitled to receive mail addressed to Target Pest Control for the purpose of winding up its affairs. Brian Eiland, P. S. Docket No. MD-97 (I.D. October 2, 1990).

5. Since Disputant Almond is the partner who wishes to receive the disputed mail on behalf of the partnership, it is concluded that he should do so for the purpose of winding up its business.

6. This decision only resolves the question of delivery of the mail in dispute, and does not determine ownership of such

mail. Accordingly, if Mr. Almond receives any mail which is clearly intended for the corporation, he is responsible for forwarding such mail to Mrs. Talley, President of the corporation. Also, any mail intended solely for Mr. Talley should be forwarded to him.

Randolph D. Mason Administrative Law Judge

1/ Under ¶ 16 of the agreement, the "retirement" of a partner such as Mr. Talley would cause an immediate dissolution of the partnership. Under ¶ 18, the partners may dissolve by simply selling off the assets, paying the bills, and equally dividing the assets. Mr. Talley states that all issues have been resolved between the partners.