Appeal of P.S. Docket No. MD-192 -- ANNETTE CORRINE RODGERS and LAMAR CONSTANTINE, JR.

 In the Matter of a Mail Dispute	) August 6, 1993
 Between:				)
					)
 ANNETTE CORRINE RODGERS		)
					)
 and					)
					)
 LAMAR CONSTANTINE, JR.		 	) P. S. Docket No. MD-192

 APPEARANCE FOR 			
 ANNETTE CORRINE RODGERS:		None.

 APPEARANCE FOR				
 LAMAR CONSTANTINE, JR.:		None.

INITIAL DECISION

This mail dispute has been docketed pursuant to Domestic Mail Manual § 153.72, 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 Latoya Northwest Windshield Repair, P. O. Box 2773, Everett, Washington 98203-0773 is presently being held by the Postmaster, Everett, Washington. Disputant Rodgers has submitted a sworn statement, as required by 39 C.F.R. § 965.5, while Disputant Constantine has not.

FINDINGS OF FACT

1. On February 19, 1993, Disputant Rodgers executed a buy-sell agreement with Ms. Virginia Bernauer under the terms of which Ms. Rodgers purchased from Ms. Bernauer the business name, customer list and certain equipment and supplies of Latoya Northwest Windshield Repair, (hereinafter "Latoya") a windshield repair business (Rodgers submission).

2. The business address of Latoya was P. O. Box 2773, Everett, Washington 98203-0773. Latoya is a mobile service in which the proprietor travels to customers' locations and repairs damaged windshields (Id.).

3. Prior to the execution of the February 19, 1993 buy-sell agreement Disputant Rodgers agreed with Disputant Constantine to enter into negotiations to form a partnership to operate Latoya. Business forms for the proposed partnership were filed with both the State of Washington and the Internal Revenue Service (Id.; Field Counsel submission).

4. The disputants were unable to agree on the terms of the partnership and thus no partnership agreement was ever effective (Rodgers submission). Notice was given in May 1993 to the State of Washington by Disputant Rodgers to cancel the business registration or license of Latoya which contained a designation of partnership (Id.).

5. On May 6, 1993, Disputant Constantine prepaid six months rent on P. O. Box 2773, Everett, Washington. He received a new key to the P. O. Box and thus Disputant Rodgers was unable to access the P. O. Box. Disputant Rodgers thereupon requested access to the box and the postmaster determined to hold all mail until the matter could be resolved (Field Counsel submission).

6. Disputant Rodgers now operates Latoya from a mailing address of P. O. Box 1675, Snohomish, WA 98290-1675.

CONCLUSIONS OF LAW

1. Disputant Lamar Constantine, Jr., failed to make the submittal required by 39 C.F.R. § 965.5 and thus is in default in this proceeding pursuant to 39 C.F.R. § 965.7.

2. Disputant Rodgers was the sole purchaser of Latoya on February 19, 1993, and since no partnership agreement was ever consummated, Mr. Constantine has no interest of any nature in the assets or operation of Latoya.

3. Accordingly, it is determined that Disputant Rodgers has the right to delivery of all presently being held or received in the future addressed to Latoya Northwest Windshield Repair, P. O. Box 2773, Everett, Washington 98203-0773.

4. The mail in dispute addressed to Latoya Northwest Windshield Repair, P. O. Box 2773, Everett, Washington is to be delivered in accordance with the instruction of Annette Corrine Rodgers. Mail addressed to Lamar Constantine, Jr., at P. O. Box 2773, Everett, Washington is to be delivered to Mr. Constantine.

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 assuring delivery of the mail to the correct recipient.

6. The attached mail delivery order should be issued.

 					James D. Finn, Jr.
 					Administrative Judge