Appeal of P.S. Docket No. MD-198 -- JOY DONIGAN and JEFF DONIGAN

 In the Matter of a Mail Dispute        ) September 30,1993
 Between:				)
					)
 JOY DONIGAN				)
					)
 and					)
					)
 JEFF DONIGAN				) P. S. Docket No. MD-198


 APPEARANCE FOR JOY DONIGAN:            Jeffrey S. Gerow, Esq.
                                        4800 N. Federal Highway, Suite 306B
                                        Boca Raton, FL  33431-5145

 APPEARANCE FOR JEFF DONIGAN:           Daniel E. Oates, Esq.
                                        1500 E. Atlantic Blvd., Suite B
                                        Pompano Beach, FL  33060-6769

INITIAL DECISION

This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book (DMM) § 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 Donigan Nutrition Center, 3561 N. Federal Highway, Boca Raton, Florida 33431-5945 is presently being held by the Postmaster, Boca Raton, Florida. Both parties have submitted a sworn statement, as required by 39 C.F.R. § 965.5.

FINDINGS OF FACT

1. On January 21, 1984, Disputants Joy (Joyce) and Jeff (Jeffrey) Donigan d/b/a Donigan Nutrition Center, executed a lease as lessees of the premises situated at 3561 N. Federal Highway, Boca Raton, Florida 33431 for the purpose of operating a health food store (Jeff Donigan submission).

2. In 1990 a dispute arose between Joy and Jeff Donigan and Jeff ceased participating in the operation of Donigan Nutrition Center (Joy Donigan submission).

3. Jeff Donigan thereafter formed a corporation known as Dawn Again, Inc., and operated a nutrition/vitamin store in Ft. Lauderdale, Florida. Joy Donigan also formed a new corporation, Donigan Nutrition Center, Inc., which, with Joy as the sole shareholder, operated the business known as Donigan Nutrition Center at 3561 North Federal Highway, Boca Raton, Florida. At that time each party also owned a 50% interest in another corporation named Vivioptal, which had registered the name Donigan Nutrition Center as its service mark (Id.; Jeff Donigan submission).

4. A subsequent lawsuit was filed by Jeff Donigan and Dawn Again, Inc., as plaintiffs, against Vivioptal, Inc., Joy Donigan and Donigan Nutrition Center, Inc., as defendants, for the monetary interest of plaintiffs in Vivioptal, Inc. and Donigan Nutrition Center. On December 7, 1992, judgment in the amount of $191,224.94, representing one-half of the value of Donigan Nutrition Center and Vivioptal Inc., including inventory, plus pre-judgment interest, was entered in plaintiffs' favor (parties' submissions).

5. On or about January 15, 1993, Joy Donigan and Donigan Nutrition Center, Inc., vacated the store located at 3561 N. Federal Highway, Boca Raton, Florida, and soon thereafter both Joy Donigan and Donigan Nutrition Center, Inc., filed for bankruptcy. On February 19, 1993, the trustee in bankruptcy for Donigan Nutrition Center, Inc., filed a notice of intent to abandon the leasehold interest at 3561 North Federal Highway, Boca Raton, Florida. The abandonment thereafter became final (Id.).

6. Jeff Donigan subsequently moved into the premises at 3561 North Federal Highway and occupied it for the purpose of operating Donigan Nutrition Center at that location. Mr. Donigan continues to operate the business at that location to this date and has made all rental payments. The sign on the premises reads "Donigan Nutrition Center" (Jeff Donigan submission).

7. The bankruptcy proceedings were dismissed with prejudice on June 3, 1993, and the judgment against Vivioptal, Inc., Joy Donigan and Donigan Nutrition Center, Inc., was satisfied in full on August 1, 1993 (Joy Donigan submission).

8. Joy Donigan presently operates her business under the name Donigan Nutrition Center (apparently along with Jane Donigan, who is not otherwise identified in the record) at 6361 Hollandaire Drive East, Boca Raton, Florida. Both Joy and Jeff claim the right to delivery of mail addressed to Donigan Nutrition Center at 3561 North Federal Highway, Boca Raton, Florida (Field Counsel submission).

CONCLUSIONS OF LAW

1. Resolution of this dispute determines only the right to delivery of the mail. It does not determine the right of ownership of the mail or resolve any dispute between the parties over the use of the name of Donigan Nutrition Center.

2. Section 153.4 of the DMM provides that all mail addressed to an organization shall be delivered to the organization.

3. Inasmuch as Joy Donigan vacated the 3561 N. Federal Highway premises, ceased operating the business at that address, and abandoned her leasehold interest, and inasmuch as Jeff Donigan has occupied the 3561 N. Federal Highway premises for several months, has paid the rent for such period, and has operated Donigan Nutrition Center at that address during such time, Jeff Donigan is entitled to delivery of the mail addressed to Donigan Nutrition Center at the 3561 N. Federal Highway address, as the most probable intended recipient, as well as pursuant to DMM 153.4

4. All mail addressed to Donigan Nutrition Center without the designation "Inc.", or "Incorporated" at 3561 N. Federal Highway, Boca Raton, Florida 33431 is to be delivered as addressed. All mail addressed to Donigan Nutrition Center, Inc. or Incorporated, at 3561 N. Federal Highway, Boca Raton, Florida is to be forwarded to Joy Donigan, 6361 Hollandire Dr., East, Boca Raton, Florida 33433. If either party to this dispute receives mail intended for the other party, the mail should be forwarded to the intended recipient.

5. The attached mail delivery order should be issued.

 					James D. Finn, Jr.
 					Administrative Judge