December 14, 1992

In the Matter of a Mail Dispute Between:

 

PAUL D. FRY

and

HOOD COMMUNICATIONS, INC.

 

P. S. Docket No. MD-164

 

APPEARANCE FOR PAUL D. FRY:

 

Paul D. Fry

1807 Canyon Oak Ct

San Mateo, CA  94402-3911

 

APPEARANCE FOR HOOD COMMUNICATIONS, INC.

 

Bruce E. Cash

P. O. Box 2326

Grand Terrace, CA  92324-0813

 

INITIAL DECISION

 

            This mail dispute matter has been docketed pursuant to Domestic Mail Manual §153.72, which requires Regional Counsel to forward certain unresolved mail disputes to this Department for decision.  The mail in dispute, which is addressed to P. O. Box 1486, Burlingame, CA  94010-1486, is presently being held by the Postmaster, Burlingame, CA  94010-9998.[1]  Disputant Hood Communications, Inc. has filed a written submittal, as required by 39 C.F.R. §965.5, which Disputant Paul D. Fry has not.  Nor has Mr. Fry filed any comments addressing Hood Communications’ submittal, as permitted by 39 C.F.R. §965.6.

FINDINGS OF FACT

            1.  Post Office Box 1486, Burlingame, CA was rented by Disputant Paul D. Fry on April 14, 1987.  Item 1 of the application Form which was updated in May 1992 (PS Form 1093, July 1989) shows the name to which the box number is assigned by the typewritten designation “Fry & Associates, Inc.” with one ink line drawn through it followed by the hand printed designation “Paul D. Dry.”[2]

            2.  The entity Fry & Associates, Inc. was owned by Disputant Paul Fry and Loretta Fry prior to April 1990.  On April 1, 1990, Hood Communications, Inc. purchased all of the shares of Fry & Associates, Inc. from Disputant Paul Fry and Loretta Fry and to this date continues to own all of the shares of Fry & Associates, Inc.  Fry & Associates, Inc.’s sole mail address was P. O. Box 1486, Burlingame, CA.  Rent for P. O. Box 1486, Burlingame, CA has been paid by Fry & Associates, Inc., and not Mr. Fry, since April 1990.

            3.  From April 1, 1990 to September 18, 1992, Disputant Paul Fry was an employee of Fry & Associates.  Upon termination of his employment Disputant Fry, on September 22, 1992, went to the Burlingame, CA Post Office and closed P. O. Box 1486.

            4.  On that same date Mr. Fry provided the Burlingame Postmaster with change of address orders (PS Form 3575, March 1988) for P. O. Box 1486.  Five forms covered business entities – GAF Communications, Inc., Commercial Planning & Engineering, Consultel, Inc., Hussey Diggins and Fry & Associates, Inc.  An additional form covered Paul D. Fry – entire family.  Each form requested that mail addressed to P. O. Box 1486 be forwarded to 1807 Canyon Oak Court, San Mateo, CA  94402.

            5.  On September 28, 1992, Hood Communications, Inc. requested that all mail addressed to P. O. Box 1486, Burlingame, CA  be forwarded to Fry & Associates, P. O. Box 2326, Grand Terrace, CA  92324, as it was moving its operation to Grand Terrace.

CONCLUSIONS OF LAW

            1.  Disputant Fry failed to make the submittal required by 39 C.F.R. §965.5 and thus is in default of this proceeding.  39 C.F.R. §965.7.  The default alone is ground for deciding the dispute in favor of Disputant Hood Communications, Inc.

            2.  By conveying all shares in Fry & Associates, Inc. to Hood Communications, Inc., Paul Fry divested himself of all financial interest in Fry & Associates.

            3.  While the record is not clear as to the identity of the original lessor of P. O. Box 1486, i.e., Paul Fry individually or Fry & Associates, Inc., it appears that by the conveyance by  Mr. Fry of all shares in Fry & Associates to Hood Communications, by Hood’s payment of all rental on P. O. Box 1486 since April 1990, and the use by Fry & Associates, Inc. (under the control of Hood) of P. O. Box 1486 since April 1990, the parties to this dispute most probably intended that Paul Fry relinquish any right he had to receive mail addressed to Fry & Associates at P. O. Box 1486.

            4.  The record in this matter does not support a conclusion that there is any business connection or relationship between Hood Communications and GAF Communications, Inc., Commercial Planning & Engineering, Consultel, Inc., or Hussey Diggins.

            5.  The mail in dispute addressed to Fry & Associates, Inc. should be forwarded to Fry & Associates, P. O. Box 2326, Grand Terrace, CA  92324.

            6.  Mail addressed to GAF Communications, Inc., Commercial Planning & Engineering, Consultel, Inc., Hussey Diggins or Paul D. Fry, individually or to members of his family, should be forwarded to 1807 Canyon Oak Court, San Mateo, CA  94402.

            7.  Resolution of this dispute determines only the right to delivery of the mail.  It does not determine the question of ownership.  If either party to this dispute receives any mail intended for the other that party is responsible for assuring delivery of the mail to the correct recipient.

            8.  The attached mail delivery order should be issued.

                                                                                    James D. Finn, Jr.

                                                                                    Administrative Judge


[1] Pursuant to agreement of the parties the Acting Judicial Officer on November 13, 1992, issued an Order directing the release to Hood Communications of all mail sent by Pacific Bell and addressed to Fry & Associates, Inc., at P. O. Box 1486, Burlingame, CA.  All other mail sent to P. O. Box 1486 continues to be held.

[2] The copy of the PS Form in the record contains the handwritten word “updated” and a stamped-in date of May 7, 1992.