December 16, 1992

In the Matter of a Mail Dispute Between:

ROBERT C. BISCHOFF

And

JOHN D. THOMANN

P. S. Docket No. MD-163

APPEARANCE FOR ROBERT BISCHOFF:       

Robert C. Bischoff

455 Fensalir Avenue

Pleasant Hill, CA  94523-1820

APPEARANCE FOR JOHN D. THOMANN:        

John D. Thomann

P.O. Box 23846

Pleasant Hill, CA  94523-0846

INITIAL DECISION

            The Office of Field Legal Services, Western Division, has referred this mail dispute for resolution pursuant to Domestic Mail Manual (DMM) §153.72 and 39 C.F.R. Part 965.  Both disputants filed written submittals as required by 39 C.F.R. §965.5.  Neither filed comments as permitted by 39 C.F.R. §965.6.  The Findings of Fact and Conclusions set out below are based on the submittals by both parties and on the documents forwarded by the Office of Field Legal Services.

            The mail in dispute is addressed to Bischoff Medical Supply at 5016 Forni Drive, Suite D, Concord, CA  94520-1255.

FINDINGS OF FACT

            1.         At some time prior to November 1991, the disputants were partners or otherwise jointly ran a business at the disputed address under the name Bischoff Medical Supply.  In November 1991, disputant Bischoff filed a personal bankruptcy petition.  Disputant Thomann did not file such a petition.

            2.         At about that time, the disputants largely ceased doing business under the name Bischoff Medical Supply and began, instead, doing business under the name Bischoff Surgical Supply.  The form of the new business is in question, with Mr. Bischoff contending that it remained a partnership and Mr.  Thomann contending that Mr. Bischoff became an employee of the business.

            3.         By August or September 1992, Mr. Thomann had obtained a business license in Contra Costa County, California, as the owner of "Bischoff Surgical Supply," and a Seller's Permit from the State of California in the name "R.C. Bischoff Surgical/Secure P."  Mr. Thomann's business operates at the disputed address.

            4.         By September 1992, Mr. Bischoff was operating a business under the names Bischoff Medical Supply and Bischoff Surgical Supply in Pleasant Hill, California, and had registered those names as fictitious business names with the Clerk of Contra Costa County.  By that time it appears that the parties were no longer doing business together.

            5.         On August 28, 1992, Mr. Bischoff filed a change of address notice for Bischoff Medical Supply to have mail addressed to that firm at the disputed address forwarded to Mr. Bischoff's new address.  Mr. Thomann objected to the change of address.

CONCLUSIONS

            Disputants Thomann and Bischoff operated a business at the disputed address, first under the name Bischoff Medical Supply and then under the name Bischoff Surgical Supply.  At this time, Mr. Thomann is operating Bischoff Surgical Supply at the disputed address and Mr. Bischoff is operating a business under the name Bischoff Medical Supply and Bischoff Surgical Supply at a new address.

            Mr. Thomann argues that he has no objection to Mr. Bischoff receiving mail addressed to Bischoff Medical Supply at the new address, but he objects to Mr. Bischoff receiving mail addressed to Bischoff Medical Supply at the disputed address.  Mr. Thomann argues that in their industry, the terms "medical" and "surgical" are used interchangeably and that some of the customers for his business, Bischoff Surgical Supply, persist in using the name Bischoff Medical Supply with the disputed address, even though they have been repeatedly notified of the change.

            Mr. Bischoff argues that after their association ceased, he allowed Mr. Thomann to continue doing business at the disputed address, but he never authorized Mr. Thomann to continue doing business as "Bischoff" Surgical Supply.  Nonetheless, based on permits issued by the State of California and Contra Costa County, it is clear that a business by that name is, in fact, still being operated at the disputed address.

            Under DMM §153.52, mail to unincorporated firms or partnerships is to be delivered as addressed as long as the business is being conducted under the same name at the same address, despite some members of the firm breaking off relations. This provision is applicable here.  Within the past year the business at the disputed address has operated under both names - i.e., Bischoff Medical Supply and Bischoff Surgical Supply - and continues to operate at this time under one of those names.  Accordingly, it is likely that mail addressed to either business name at the disputed address is intended for the business being operated at that location and should be delivered as addressed.

            The purpose of this proceeding is only to determine which party is entitled to delivery of the mail.  It does not determine the question of ownership of the mail or ultimate entitlement to it.  Therefore, if disputant Thomann receives mail at the disputed address which is intended for disputant Bischoff, he should have the mail forwarded to the correct destination.

            The attached mail delivery instruction to the Postmaster should be released.

                                                                                    David I. Brochstein

                                                                                    Administrative Judge