In the Matter of a Mail Dispute:       ) March 30, 1993
 Between:                               )
                                        )
 PAUL D. WISER                          )
                                        )
 and                                    )
                                        )
 LINDA DeLUCA                           ) P. S. Docket No. MD-175

 APPEARANCE FOR DISPUTANT WISER:        Damon K. Bernstein, Esq.
 5904 Hubbard Drive
 Rockville, MD 20852

 APPEARANCE FOR DISPUTANT DeLUCA:       None.

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 is addressed to Paul D. Wiser Family Trust, RR1 Box 90, Westernport, MD 21562-9602.

Disputant Paul D. Wiser ("Wiser") has filed a submittal, as required by 39 C.F.R. § 965.5, but Disputant Linda DeLuca ("DeLuca") has not. Nor has she filed comments addressing Disputant Wiser's submittal, as permitted by 39 C.F.R. § 965.6. The following findings of fact are based on Mr. Wiser's submittal as well as documentation forwarded by the Office of Field Legal Services.

1. On August 28, 1992, Disputant Wiser signed a document captioned "Irrevocable Agreement of Trust of Paul D. Wiser". In the agreement, a trust was established under the name "Paul D. Wiser Family Trust" (sometimes referred to as "the Trust") and Disputant DeLuca, who is the daughter of Disputant Wiser, was named trustee. The trustee was given broad powers to conduct business related to the Trust and to manage trust property.

2. At the time that the trust agreement was signed, Disputant Wiser apparently lived with Disputant DeLuca at 29001 Ridge Road, Mt. Airy, MD, 21771 ("the Ridge Road address"). Subsequently, Disputant Wiser moved to the home of another daughter, Patricia Wassell, in Westernport, MD.

3. Disputant Wiser signed individual Change Of Address Orders (PS Form 3575) on September 15 and November 24, 1992, directing that mail addressed to him at the Ridge Road address should be forwarded to Box 90, Westernport MD 21562. On November 9, 1992, Dis putant DeLuca, as trustee, signed a New Address Verification Card (PS Form 3575-A) and on December 7, 1992, a Change Of Address Order, both indicating that mail addressed to the Paul D. Wiser Family Trust should be delivered to the Ridge Road address.

4. Disputant Wiser apparently has filed a Complaint in the Circuit Court for Montgomery County, Maryland against, inter alia, Linda DeLuca individually and as trustee of the Paul D. Wiser Family Trust. In the Complaint Disputant Wiser is seeking, in pertinent part, to set aside the Paul D. Wiser Family Trust agreement.

1. Disputant DeLuca has failed to file a submittal as required by 39 C.F.R. § 965.5 and thus is in default. Under 39 C.F.R. § 965.7 the default is grounds for deciding this matter in favor of Disputant Wiser.

2. Disputant Wiser clearly does not contest the right of Disputant DeLuca to receive all mail addressed to her as trustee of the Paul D. Wiser Family Trust. The dispute is therefore confined to mail addressed to the Trust which does not specify the name of the trustee. In this regard, Disputant Wiser, through counsel, has indicated that unless there is a regulation which authorizes the Postal Service to retain custody of the disputed mail pending the outcome of a court case, he would "decline to litigate control over mail addressed to the Trust in these proceedings".

There is no regulation authorizing the Postal Service to retain custody of mail pending the outcome of a court proceeding. On the contrary, the Judicial Officer is charged with "timely deciding and directing the delivery of disputed mail until a court decision is issued."

J. David Hollowood and Quincy Randecker, P.S. Docket No. MD-165, slip op. at 2 (P.S.D. February 2, 1993). See also, Christine Walker and Matthew Leivas, Sr., P.S. Docket No. MD-153, slip op. at 5 (P.S.D. August 28, 1992). If a court decides to whom delivery of mail should be made during the course of proceedings before it, the mail is then delivered according to the court order. Domestic Mail Manual ("DMM") § 153.73.

3. Although Disputant De Luca has defaulted and Disputant Wiser does not seek to litigate the issue of mail delivery to the Trust in this proceeding, the disputants have submitted sufficient evidence to support a decision in this matter. The record unequivocally shows that the August 28, 1992, trust agreement is still in effect and that Disputant DeLuca remains the trustee of the Paul D. Wiser Family Trust. While this trust agreement remains in effect, Disputant DeLuca has the right to receive mail addressed to the Trust, whether or not she is specifically named as an addressee. Cf. David Rakes and James Merriman, P.S. Docket No. MD-15 (P.S.D. May 23, 1988), (trustee of business had right to control delivery of mail addressed to business).

4. In the absence of a court order directing otherwise, mail addressed to Paul D. Wiser Family Trust at RR1, Box 90, Westernport, MD 21562-9602, should be delivered as directed by Disputant Linda DeLuca.

5. 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 forwarding such mail to the correct recipient.

6. The attached mail delivery order should be issued.

                                        Judith A. Dowd
                                        Administrative Law Judge