Appeal of LAWRENCE GARDNER and DAVID FEDER -- P. S. Docket No. MD-210

Administrative Law Judges

In the Matter of a Mail Dispute		)	February 9, 1994
Between:				)
					)
LAWRENCE GARDNER			)
					)
	and				)
					)
DAVID FEDER				)	P. S. Docket No. MD-210

APPEARANCE FOR DISPUTANT		Alan J. Long, Esq.
 LAWRENCE GARDNER:			22815 Kelly Road
					Eastpointe, MI  48021-2073

APPEARANCE FOR DISPUTANT
 DAVID FEDER:				None.

INITIAL DECISION

This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book (DMM) §153.721(c), 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 Stanley Process, Inc., P. O. Box 527, Eastpointe, MI 48021, or 21339 Gratiot, Eastpointe, MI 48021 is presently being held by the Eastpointe Postmaster. Disputant Gardner filed the written submittal required by 39 C.F.R. §965.5, while Disputant Feder did not.

FINDINGS OF FACT

1. Prior to January 6, 1993, Disputant Gardner was the owner, sole stockholder and president of Stanley Process, Inc. ("Stanley"), a Michigan Corporation which operated at 21339 Gratiot, Eastpointe, MI 48021(Gardner Affidavit and Affidavit Exhibits A, C, E).

2. On January 6, 1993, Disputant Gardner entered into an"Agreement For Sale of Stock and Business Assets" ("Agreement") with Disputant Feder, which provided for the sale by Mr. Gardner to Mr. Feder of the stock and business assets of Stanley for the sum of $60,000, $20,000 of which was to be paid in cash with the balance payable in installments. Under the Agreement Mr. Gardner agreed to dissolve the corporate entity, Stanley (Id., Exhibit A).

3. The Agreement provided that Mr. Feder would execute and deliver to Mr. Gardner a secured promissory note, a UCC Financing Statement giving Mr. Gardner a security interest in Stanley's business assets (equipment and inventory), and an agreement to reassign such business assets to Mr. Gardner in the event of default of the Agreement by Mr. Feder (Id.).

4. On February 6, 1993, Mr. Feder executed a security agreement which granted Mr. Gardner a security interest in Stanley's business assets and obligated Mr. Feder to reassign such assets to Mr. Gardner in the event of Mr. Feder's default of the Agreement (Id., Exhibit D).

5. Mr. Feder operated Stanley at the 21339 Gratiot address, but defaulted on the Agreement by failing to make monthly payments to Mr. Gardner after March 1993. Mr. Feder also utilized the P. O. Box 527, Eastpointe, MI 48021 address to receive Stanley's mail. By letter dated November 10, 1993, Mr. Feder advised Mr. Gardner that he was ceasing to operate Stanley, and offered to make arrangements to transfer the business equipment to Mr. Gardner (Gardner Affidavit; Affidavit Exhibit J).

6. Mr. Gardner never dissolved the corporate entity, "Stanley", and after Mr. Feder's default Mr. Gardner retook possession of the business as its president, and resumed the operation under the name Stanley Process, Inc., at 21339 Gratiot, Eastpointe, MI 48021 (Gardner Affidavit).

7. Both Mr. Gardner and Mr. Feder seek delivery of the mail addressed to Stanley.

CONCLUSIONS OF LAW

1. Disputant Feder failed to make the submittal required by 39 C.F.R. §965.5, and thus is in default of this proceeding. 39 C.F.R. §965.7. The default alone is ground for deciding the dispute in favor of Disputant Gardner.

2. Disputant Feder defaulted under the Agreement with Disputant Gardner and as a result Disputant Gardner reacquired the business assets of Stanley, now operates Stanley as its president at the 21339 Gratiot address, and is entitled to mail addressed to Stanley.

3. The DMM provides that if disagreement arises as to the delivery of mail addressed to an organization the mail must be delivered in accordance with the organization's president (DO 42.4.1).

4. All mail addressed to Stanley Process, Inc., at P. O. Box 527, Eastpointe, MI 48021-0527 and at 21339 Gratiot, Eastpointe, MI 48021-2831 is to be delivered in accordance with the direction of its president, Lawrence Gardner.

5. The attached mail delivery order should be issued.

6. 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 party that party is responsible for assuring delivery of the mail to the correct recipient.

					James D. Finn, Jr.
					Administrative Judge