Appeal of P. S. Docket No. MD-208 -- KATHY E. KELLEY and JOE PYLANT

Administrative Law Judges

In the Matter of a Mail Dispute		)	February 1, 1994
Between:				)
					)
KATHY E. KELLEY				)
					)
	and				)
					)
JOE PYLANT				)	P. S. Docket No. MD-208


APPEARANCE FOR
KATHY E. KELLEY:			Kathy E. Kelley
					P. O.  Box 540114
					Grand Prairie, TX 75054-0114

APPEARANCE FOR
JOE PYLANT:				Joe Pylant
					1080 Sandy Lake Road, #82
					Coppell, TX 75019-3102

INITIAL DECISION

The Memphis Law Office, United States Postal Service, has referred this mail dispute for resolution pursuant to Domestic Mail Manual (DMM) Transition Book §153.721 (c). The mail in dispute is that addressed to SPC Forms Company, Route 1, Box 160A-3, Pickton, TX 75471-9707 and P.O. Box 160, Pickton, TX 75471-0160. Neither party submitted a sworn statement, as required by 39 C.F.R. §965.5. However, Disputant Pylant submitted an unsworn statement⁽¹⁾ within the 15-day period specified in the regulations. Disputant Kelley submitted an unsworn statement, documents, and comments on Disputant Pylant's submittal within the period allowed for submitting comments. The following findings of fact and conclusions of law are based on the documents submitted by the parties and the documents forwarded by the Memphis Law Office.

FINDINGS OF FACT

1. No later than August 1987, a business using the name SPC Forms Company was formed. Disputant Kathy E. Kelley was one of the owners of the business, which operated as a "general partnership." The address of the business was 1802 Corral Rd., Grand Prairie, Texas. On August 12, 1987, the business filed an "Assumed Name Records" form in Dallas County, Texas, the county in which Grand Prairie is located, indicating that the business would be operating using the name SPC Forms Company.

2. The record does not provide any information concerning what happened to the business in the interim, but, according to Ms. Kelley, in December 1992 she and Disputant Joe Pylant became business associates to "rebuild" SPC Forms Company.⁽²⁾ At some later time, SPC Forms Company sent out letters to clients announcing that the business had "reorganized, relocated and is ready for business." That announcement noted the address for the business as Rt. 1, Box 160A-3, Pickton, Texas 75471.

3. In May 1993, SPC Forms Company ordered a quantity of paper form pads from a printer, using the Rt. 1, Box 160A-3 address as the shipping address. Ms. Kelley signed two checks, totaling $1,097.01, in payment for the forms.

4. On June 3, 1993, Mr. Pylant rented a Post Office Box in Pickton and was assigned P.O. Box 160. On the application form, Mr. Pylant used Rt. 1, Box 160A-3 as his address and listed himself and "SPC Forms" as authorized to accept mail addressed to the box. Ms. Kelley's name did not appear on the application.

5. Although the details are not provided in the record, Ms. Kelley and Mr. Pylant ceased doing business together, and on July 8, 1993, Ms. Kelley brought suit against Mr. Pylant in the Justice Court, Hopkins County, Texas. Ms. Kelley sought the payment of $5,000 from Mr. Pylant as compensation for a client mailing list, gross receipts from 1993, and approximately 20 cases of report forms at a cost of $1,097.01.

6. On July 12, 1993, Ms. Kelley filed an assumed name form to register the name "SPC Forms Company" in Hopkins County, Texas, in which Pickton is located, listing herself as the owner and the business as a sole proprietorship. On July 29, 1993, Mr. Pylant filed an assumed name form registering the name "Specialty Products & Custom Forms of Texas" in Hopkins County.

7. On September 23, 1993, Ms. Kelley filed a change of address form with the Pickton Post Office directing that mail addressed to SPC Forms Company at Rt. 1, Box 160A-3 be delivered to P.O. Box 540114 in Grand Prairie, Texas.

8. On September 28, 1993, a jury found in favor of Ms. Kelley in her suit and awarded her the amount of $1,154.00 plus costs.

9. On September 28, 1993, Mr. Pylant also filed a change of address form directing that mail addressed to SPC Forms at P.O. Box 540114, Grand Prairie, be delivered to P.O. Box 160, Pickton.

10. On December 1, 1993, Mr. Pylant filed two change of address forms with the Pickton Post Office. Through these forms he directed that mail addressed to the last name "Pylant" or to SPC Forms at P.O. Box 160, Pickton be delivered to an address in Coppell, Texas.

CONCLUSIONS OF LAW

1. The name SPC Forms Company was in use by Disputant Kelley since at least 1987. The exact nature of the business relationship between Mr. Pylant and Ms. Kelley in "rebuilding" and "relocating" SPC Forms Company is not clear. However, based on Ms. Kelley's payment for the printed material shipped to SPC Forms Company at the Rt. 1, Box 160A-3 address, I conclude that she had a direct connection with the business operated at that address, contrary to Mr. Pylant's contention. I further conclude that the business which was "relocated" to Rt. 1, Box 160A-3, Pickton, Texas was the same business originally operated in Grand Prairie by Ms. Kelley and others (not including Mr. Pylant ).

2. When Mr. Pylant rented P.O. Box 160 on June 3, 1993, I conclude that he did so in connection with the operation of the SPC Forms Company which he operated with Ms. Kelley. Although Ms. Kelley's name does not appear on the application form, "SPC Forms" is listed as an authorized recipient of mail addressed to P.O. Box 160. Further, the record does not reflect the existence of Mr Pylant's company "Specialty Products & Custom Forms of Texas," which he apparently also refers to as "SPC Forms Company," prior to September 1993 when he registered the name in Hopkins County.

3. From the record it is clear that Mr. Pylant has severed his relationship with the SPC Forms Company which he previously operated with Ms. Kelley. It is also clear that Ms. Kelley continues to operate the business. Since the SPC Forms Company now operated by Ms. Kelley was the company which first used that name in connection with both addresses in dispute, I conclude that mail addressed to SPC Forms Company at both addresses should be delivered as directed by Ms. Kelley. See Opinions of the Solicitor of the Post Office Department, Vol. I, Opinion No. 397 (October 18, 1884), Vol. II, Opinion Nos. 598 (April 27, 1886) and 766 (April 28, 1888).

4. Resolution of this mail dispute determines only the right to delivery of the mail. It does not determine the question of ownership of the mail or the contents thereof. If Ms. Kelley receives any mail intended for Mr. Pylant, she should see that such mail is forwarded to him.

5. The attached Delivery Order should be issued.

							David I. Brochstein
							Administrative Judge

1. ¹ A statement which is merely "acknowledged" before a notary but not sworn to is considered an unsworn statement. Lydick v. Chairman of Dallas County Republican Executive Comm., 456 S.W. 2d 740, 742 (Tex. Civ. App. 1970); State Bar of Texas v. Tinning, No. 13-92-270-CV, slip op. (Tex. Ct. App. October 14, 1993)

2. ² There is no evidence of any previous association between Mr. Pylant and SPC Forms Company.