In the Matter of a Mail ) January 13, 1994 Dispute Between ) ) JOE NEMEC ) ) and ) ) OLEH STOWBUNENKO ) P. S. Docket No. MD-204 APPEARANCE FOR DISPUTANT JOE NEMEC: None. APPEARANCE FOR DISPUTANT OLEH STOWBUNENKO: None.
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 Golden West Studios or Golden West Photography at 1502 West El Camino Ave., Sacramento, CA 95833, or P. O. Box 340070, Sacramento, CA 95834, or 2232 Northgate Blvd., Sacramento, CA 95833 is presently being held by the Sacramento Postmaster. Both parties have filed the written submittals required by 39 C.F.R. §965.5. Mr. Nemec untimely filed comments on Mr. Stowbunenko's submission. However, the comments were considered but for the most part were not relevant. For reference purposes the pages of the respective submissions have been numbered in the exact order as received. Mr. Nemec's submission consists of pages 1-146, while Mr. Stowbunenko's submission consists of pages 1-117.
1. Since 1984 or 1985 Disputant Nemec and his wife, Lucy, have operated a business known as Action Photo Center (a photo lab and studio) located at 1502 West El Camino Avenue, Sacramento, CA 95833 (Nemec Submission ("NS"), pages 5, 133).
2. Since at least 1984 Disputant Stowbunenko operated a business known as Boyan Studios or Boyan Studios II (a photo studio) located at 3801 Airport Road and subsequently at 2232 Northgate Blvd., Sacramento, CA 95833. The mailing address for Boyan Studios is P. O. Box 340070, Sacramento, CA 95834 (Stowbunenko Submission ("SS") pages 16, 19, 40, 44, 50, 62, 70, 83; NS 7, 40, 139).
3. In the Spring of 1993, the Disputants entered into an informal partnership agreement to operate photo studios under the name "Golden West Studios"(1) (SS 2, 9, 114). The partnership initially operated out of Portland, OR, then Yuba City, CA, and 2232 Northgate Blvd. and 1502 West El Camino Avenue, Sacramento, CA (SS 2, 9, 26, 44, 67, 72, 83; NS 6, 8, 9-10, 15-18, 25). The partnership also operated under the name "Golden West Photography" at the El Camino Avenue address (NS 34, 36, 129). A mailing address utilized by the partnership was P. O. Box 340070, Sacramento, CA 95834 (SS 59, 116, 117).
4. At the inception of the partnership Mr. Stowbunenko was indebted to Mr. Nemec in the amount of several thousand dollars (NS 137; SS 2).
5. During the existence of the partnership there was no separate checking account for the partnership primarily because a negative cash flow was projected, and also for accounting purposes. All monetary deposits were made in an Action Photo Center account and all partnership checks were drawn on that account with the notation "GW" on each check. All checks were signed by either Mr. Nemec, Mrs. Nemec, or a Ms. Johnson, an Action Photo employee (NS 69-112, 113-120, 134).
6. On July 27, 1993, Disputant Nemec received a business license from the City of Sacramento to operate a portrait studio at 1502 West El Camino Avenue using the name Golden West Studios/Photography. On August 1, 1993, Disputant Stowbunenko received a business license from the City of Sacramento to operate a photography studio named Golden West Studios at 2232 Northgate Blvd., with a mailing address of P. O. Box 340070 (NS 39, 41).
7. On August 23, 1993, Disputant Nemec filed a fictitious business name statement with the County Clerk, Sutter County, CA which stated that he operated "Golden West Portraits/Golden West/Golden West Photography/Golden West Studios/Action Photo Center" at 1502 West El Camino, Sacramento, CA 95833 (NS 36). On August 25, 1993, a similar statement was filed by Mr. Nemec in Sacramento County (Field Counsel submission). As of October 1, 1993, Disputant Stowbunenko had not filed a fictitious business name statement (NS 34).
8. It appears from the record that the Disputants ceased being partners in August 1993 (NS 118-19, 138).
9. Both Disputants seek delivery of all mail addressed to Golden West Studios or Golden West Photography at 1502 West El Camino Ave., Sacramento, CA 95833, at P. O. Box 340070, Sacramento, CA 95834 and at 2232 Northgate Blvd., Sacramento, CA 95833.
1. Resolution of this mail dispute determines only the right to delivery of the mail. It does not determine the ownership of the mail or resolve any dispute between the parties over the division of partnership assets or resolve any accounting matters between the Disputants.
2. The partnership operated under the name Golden West Studios or Golden West Photography at the 1502 West El Camino Avenue address. That address is also utilized by Mr. Nemec in the operation of his other business, Action Photo Center. Accordingly, mail sent to the West El Camino Avenue address is more probably intended for Mr. Nemec than for Mr. Stowbunenko.
3. The partnership also operated at 2232 Northgate Blvd. and utilized a mailing address of P. O. Box 340070. Mr. Stowbunenko operated his other business, Boyan Studios, at 2232 Northgate Blvd. and utilized P. O. Box 340070 as his mailing address. Accordingly, mail sent to those two addresses is most probably intended for Mr. Stowbunenko.
4. Additionally the DMM requires that "all mail addressed to an organization ... at the address of the organization is to be delivered to the organization" at that address (DMM DO 42.4.1.).
5. All mail addressed to Golden West Studios or Golden West Photography at 1502 West El Camino Avenue, Sacramento, CA 95833, at P. O. Box 340070, Sacramento, CA 95834 and at 2232 Northgate Blvd., Sacramento, CA 95833 shall be delivered as addressed. If either party to this dispute receives mail intended for the other party, the mail should be forwarded to the intended recipient.
6. The attached mail delivery order should be issued.
James D. Finn, Jr. Administrative Judge