In the Matter of a Mail Dispute ) July 16, 1993
Between: )
)
GAIL HERTACH )
)
and )
)
AARON BARLOW ) P. S. Docket No. MD-188
APPEARANCE FOR GAIL HERTACH: Gail Hertach
2113 Jackson Avenue
Wilmington, DE 19808-5817
APPEARANCE FOR AARON BARLOW: David J. Ferry, Jr., Esq.
824 Market Street, Suite 601
P. O. Box 1351
Wilmington, DE 19899-1351
INITIAL DECISION
This mail dispute has been docketed pursuant to Domestic Mail Manual § 153.72,1/ which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute, which is addressed to Kings Assembly of God or Kings Pentecostal Church, 3700 Kiamensi Avenue, Wilmington, Delaware 19808 is presently being held by the manager, Marshallton Branch Post Office, Wilmington, DE 19808. Both disputants have filed written submittals, as required by 39 C.F.R. § 965.5. Pursuant to an Order issued by the Administrative Judge on July 1, 1993, Disputant Hertach provided copies of documents, not previously in the record, such as church constitution, by-laws, and minutes of church meetings.
FINDINGS OF FACT
1. The King's Pentecostal Church was established on December 20, 1962, as a religious corporation under the laws of the State of Delaware. Pursuant to a public meeting of the corporation the number of trustees of the church was set at five (Exhibit B to Hertach July 8, 1993 submission).2/
2. The trustees also comprise the Church Board. A majority present at any meeting of the Church Board constitutes a quorum, provided proper notice has been given (July 8, 1993 submission, Ex. C).
3. The Constitution and By-Laws of the Church provide for election of the Church Board by majority vote of the Church assembly. Removal of a member of the Church Board (trustee) may be done by an act of a majority of the Church Board for certain enumerated grounds at any regular or special business meeting (Id.).
4. On March 11, 1990, Disputant Aaron Barlow was elected as one of the Board members and trustees of the Church. The other members and trustees were Henry E. Barlow, Jr., Helen Barlow, Disputant Gail Hertach, and Martha Webb. Thereafter Henry E. Barlow died, and subsequently Helen Barlow resigned as trustee. Since the time of Henry Barlow's death, Disputant Aaron Barlow has received the Church mail and has paid the Church's bills (Aaron Barlow Sworn Statement).
5. On March 25, 1991, Disputant Gail Hertach and Martha Webb filed an action in Chancery Court, State of Delaware, against Disputant Barlow and others seeking an appointment of a receiver and an order requiring Disputant Barlow and others to vacate the Church.3/ The action is still pending (Id.)
6. As a result of a hearing conducted in the Delaware Court on October 16, 1992, the Court directed that an election of trustees be held to resolve the pending disputes (Id.; Hertach July 8, 1993 submission, Ex. J, K, and L).
7. A special meeting of trustees was held on November 15, 1992. At that time Gabrielle Ballenger, Thomas S. Ballenger, Jr., Gail Hertach and Martha Webb were elected as trustees.4/ Aaron Barlow left the meeting prior to the vote being taken (Hertach submission, Ex. L).
8. At a March 21, 1993 meeting of the trustees previously elected on November 15 (including the pastor of the Church, Rev. John C. Megahan) a corporate resolution was passed unanimously authorizing Gail Hertach to open a Post Office Box to receive the Church's mail.
9. On March 23, 1993, Disputant Hertach applied for P. O. Box No. 5936, Wilimington, DE 19808 in the name of Kings Assembly of God or Kings Pentecostal Church. Ms. Hertach also filed P. S. Form 3575, "Change of Address Order" requesting that all the Church's mail previously delivered to 3700 Kiamensi Avenue be forwarded to P. O. Box No. 5936. Thereafter Disputant Barlow filed a Form 3575 seeking to have the Church's mail sent to an address he designated (Chief Field Counsel submission).
CONCLUSIONS OF LAW
1. The purpose of this proceeding is to resolve the dispute over the right to delivery of the mail in issue, not to determine the question of ownership of the mail or resolve other differences between the parties.
2. Resolution by the Administrative Judge or the Judicial Officer of the issues of whether a quorum existed for the special meeting of trustees on November 15, 1992, whether the existing trustees (rather than the assembly of the church) could elect the additional trustees, and whether the meeting was conducted properly in accordance with direction of the Delaware Court are not necessary in this instance to resolve the pending mail dispute.
3. In the event the November 15, 1992 meeting was a valid one, all trustees elected at the meeting desire the mail in issue to be forwarded to P. O. Box No. 5936.
4. In the event the November 15, 1992, meeting was not a valid one, Disputant Hertach, Disputant Barlow and Martha Webb remain as the three trustees of the Church. Ms. Hertach's request that mail be forwarded to P. O. Box No. 5936 constitutes the wishes of a majority of trustees, as Ms. Webb has joined in that request.
5. Accordingly, it is determined that all mail addressed to Kings Assembly of God or Kings Pentecostal Church, 3700 Kiamensi Ave., Wilmington, DE 19808 be delivered to P. O. Box 5936, Wilmington, DE.
6. If the Delaware Court determines that Aaron Barlow is entitled to delivery of the Church's mail, then delivery should be made to him in accordance with the order of the Court. DMM § 153.73. Any mail delivered to P. O. Box 5936 which is the personal mail of Aaron Barlow should be immediately forwarded to him.
7. The attached mail delivery order should be issued.
James D. Finn, Jr.
Administrative Judge
1/ DMM references contained herein are to the DMM in effect on the date of filing of this mail dispute. A revised DMM (Issue 46) was effective 7/1/93.
2/ The Constitution and By-laws of the Church, adopted on December 19, 1962, set the number of trustees at three (July 8, 1993 submission, Ex. C). The record does not explain the reason for the increase in number from three to five.
3/ Disputant Barlow resides in a portion of the Church premises at 3700 Kiamensi Avenue, Wilmington, Delaware.
4/ The record is unclear as to the status of Gabrielle and Thomas Ballenger at the time of the meeting.