In the Matter of a Mail                ) April 30, 1993
 Dispute Between                        )
                                        )
 DAVID A. POLLINO                       )
                                        )
 and                                    )
                                        )
 JIM BOWER                              )
 JIM MAISSEN                            )
 PETER ZETTERBERG                       )
 L. WESLEY YOUNG                        ) P. S. Docket No. MD-173


 APPEARANCE FOR DISPUTANT POLLINO:      David A. Pollino
 P.O. Box 44919
 Tacoma, WA  98444-0919


 APPEARANCE FOR DISPUTANTS BOWER,       Mark W. Stowe, Esq.
 MAISSEN, ZETTERBERG, and YOUNG:        P.O. Box 930
 Woodinville, WA  98072-0930

Both Disputant Pollino and Disputants Bower, Maissen, Zetterberg, and Young have filed appeals from the Initial Decision of an Administrative Law Judge which holds that mail addressed to Framing Technologies International, Inc. (FTI), or both FTI and Duraframe, Washington Building, Suite 1000, 1019 Pacific Avenue, Tacoma, WA 98402-4411, is to be delivered in accordance with the direction of David A. Pollino, and mail addressed solely to Duraframe at the Pacific Avenue, Tacoma, WA address, is to be delivered in accordance with the direction of Jim Bower, Jim Maissen, Peter Zetterberg, and L. Wesley Young. Each party takes exception to the portions of the Initial Decision which are adverse to their respective positions.

In the Initial Decision, the Administrative Law Judge found that Disputant Pollino was the sole shareholder, director, and president of FTI, a corporation he formed in January 1991,^1/ and that the Pacific Avenue, Tacoma, WA address had been FTI's corporate address since January 1992 (I.D., Findings of Fact (FOF) ¶ ¶ 1-5 & 8). Although Disputant Bower was later elected to be FTI's President, the Administrative Law Judge concluded the election was invalid^2/ since those voting in the election, Disputants Bower, Maissen, Zetterberg and Young, did not hold any shares of FTI stock and had not been properly elected to the FTI Board of Directors (I.D., FOF ¶ ¶ 5-7). The Administrative Law Judge thereby concluded that mail addressed to FTI at the Pacific Avenue, Tacoma, WA address should be delivered to Disputant Pollino as President of FTI. However, the Administrative Law Judge concluded that even though Duraframe may be a registered trademark used by FTI on its corporate stationery, any mail solely addressed to Duraframe at the Pacific Avenue, Tacoma, WA address should be delivered to Disputants Bower, Maissen, Zetterberg, and Young since Duraframe, Inc. is the name of a corporation formed solely by these Disputants (I.D., at 7).

Disputants Bower, Maissen, Zetterberg, and Young contend that they are entitled to delivery of mail addressed to FTI since they are in fact shareholders and directors of that corporation, and as the majority directors, properly elected Disputant Bower as FTI's President. Disputant Pollino opposes their appeal contending that they were not properly elected directors of FTI, and in his own appeal argues that these Disputants are not entitled to delivery of the mail addressed solely to Duraframe at the Pacific Avenue, Tacoma, WA address since their company Duraframe, Inc. has never had an office at that address. Disputant Pollino contends that Duraframe is a trade name which has been used by FTI on its stationary, cards, and brochures, and any mail addressed to Duraframe at the disputed address is intended for FTI rather than the other Disputants. Disputants Bower, Maissen, Zetterberg, and Young oppose Disputant Pollino's appeal.^3/

Disputants Bower, Maissen, Zetterberg, and Young have not shown that they are in fact shareholders or directors of FTI, that Disputant Bower was properly elected to be the President of FTI, or that the Initial Decision is otherwise clearly erroneous insofar as it directs delivery of mail in accordance with the direction of Disputant Pollino.^4/ Therefore, the Administrative Law Judge's conclusion that mail addressed to FTI, or FTI and Duraframe, at Washington Building, Suite 1000, 1019 Pacific Avenue, Tacoma, WA 98402-4411, should be delivered in accordance with the direction of David A. Pollino is affirmed.

However, the Judicial Officer has exercised his discretion to grant review of the Initial Decision on appeal, and on review finds that the record does not support the Administrative Law Judge's conclusion that mail addressed solely to Duraframe, at Washington Building, Suite 1000, 1019 Pacific Avenue, Tacoma, WA 98402-4411, should be delivered in accordance with the direction of Disputants Bower, Maissen, Zetterberg, and Young. While the Administrative Law Judge correctly determined that Duraframe, Inc. is a company formed by Disputants Bower, Maissen, Zetterberg, and Young, nothing in the record on which the Initial Decision was based establishes that Duraframe, Inc. was ever located at or used the Pacific Avenue, Tacoma, WA address.^5/ Since FTI uses the name Duraframe on its corporate stationary,^6/ and FTI used the Pacific Avenue address for almost one year, it is more likely that mail addressed solely to Duraframe at Washington Building, Suite 1000, 1019 Pacific Avenue, Tacoma, WA 98402-4411, is intended for FTI and Disputant Pollino.

After consideration of the entire record and both Disputants' exceptions to the Initial Decision, it is concluded that all mail addressed to Framing Technologies International, Inc. and/or Duraframe, Washington Building, Suite 1000, 1019 Pacific Avenue, Tacoma, WA 98402-4411, which is currently being held or hereafter received, is to be delivered in accordance with the direction of David A. Pollino. Accordingly, the appeal of Disputants Bower, Maissen, Zetterberg, and Young is denied, the appeal of Disputant Pollino is sustained, and the Initial Decision is reversed to the extent indicated herein.

                                        James A. Cohen
                                        Judicial Officer

1/ Under FTI's Articles of Incorporation and By-Laws, the aggregate number of authorized shares of common stock is limited to 50,000 and the number of directors is limited to one director (I.D., FOF ¶ 1(a)). At the first annual meeting, Disputant Pollino elected himself sole director of FTI and all 50,00 shares of common stock were issued to him (I.D., FOF ¶ 1(c)).

2/ While documents were drafted authorizing the transfer of Disputant Pollino's shares of stock, the Administrative Law Judge found that FTI's Articles of Incorporation and By-Laws were not amended to allow additional stock shares to be issued and Disputant Pollino never actually transferred any of his shares to the other Disputants (I.D., FOF ¶ 5). She thereby concluded that Disputants Bower, Maissen, Zetterberg and Young were not FTI shareholders and could not elect themselves to the Board of Directors or elect Bower as president (I.D., FOF ¶ 6-7). Moreover, even if these Disputants became shareholders as alleged, the Administrative Law Judge determined they did not become shareholders until after these elections, thereby making the elections invalid (I.D., FOF ¶ 5, n. 4).

3/ Since neither side has shown that the evidence attached to their appeals is newly discovered or why it was not presented to the Administrative Law Judge, it will not be considered on appeal.

4/ While Disputants Bower, Maissen, Zetterberg and Young contend that state law does not require stock certificates to be issued in order to obtain shares, they have not shown they were shareholders at the time the elections in issue were held. In addition, while another version of FTI's Articles of Incorporation and By-Laws was drafted and back dated to January 16, 1991, nothing in the record establishes that this version was filed and recorded with the appropriate state authority.

5/ Duraframe, Inc. was not incorporated until November 13, 1992, and the change of address form filed by Disputant Zetterberg for the purpose of forwarding mail addressed to the Pacific Avenue, Tacoma, WA address is dated December 2, 1992. Thus, even if Duraframe, Inc. had used this address, it would have done so for less than one month.

6/ Under the circumstances of this case, it is not material whether FTI registered Duraframe as its trademark. The fact that the name Duraframe appears on FTI's corporate stationary containing the Pacific Avenue, Tacoma, WA address is sufficient to support a finding that mail addressed to Duraframe at that address is most likely intended for FTI and Disputant Pollino.