In the Matter of a Mail Dispute ) June 6, 1995 Between ) ) LEN FERBER ) FERBER HAAKE CORPORATION ) ) and ) ) RANDY L. BROOKS ) BROOKS AND BROOKS CONSTRUCTION ) P. S. Docket No. MD 95-115 APPEARANCE FOR FERBER- HAAKE CORPORATION: Elmer Leonard Ferber, Jr. Vice-President Ferber-Haake Corporation P.O. Box 120 Strasburg, PA 17579-0120 APPEARANCE FOR MR. BROOKS: None
INITIAL DECISION
This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book §153.72, which requires the chief field counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Re/Max Countywide Realtors, 801 Estelle Drive, Lancaster, Pennsylvania 17061-2130. The mail is currently being held by the Lancaster Postmaster.
Mr. Ferber submitted a notarized statement and documents in support of Ferber-Haake Corporation's1 claim to the mail. Mr. Brooks has not made the submittal required by section 965.5 of the rules applicable to mail disputes, and he did not file comments to Mr. Ferber's submittal as permitted by the rules. See 39 C.F.R. §§965.5, 965.6. The following findings of fact are based on Mr. Ferber's submittal and information that was included in the file referred to the Judicial Officer by the Postal Service.
FINDINGS OF FACT
1. In 1990, Mr. Ferber and Mr. Haake obtained a franchise to operate a real estate business using the name Re/Max Countywide Realtors at 119 South Centerville Road, in Lancaster, Pennsylvania.
2. In late 1993, they, acting as Ferber-Haake Corporation, agreed to transfer the franchise and real estate business to Mr. Brooks. Under the agreement, possession of the business was to be transferred to Mr. Brooks as of January 1, 1994. By December 30, 1994, Mr. Brooks was to pay Ferber-Haake Corporation $60,000. The agreement provided that if he failed to do so, "he will be removed as Broker of Record from Re/Max Countywide Realtors, he will leave the business and Seller will have no further obligations or responsibilities owing to Buyer."
3. The transfer occurred on or about January 1, 1994, and Mr. Brooks operated the business thereafter. By June 1994, the business was being operated by Mr. Brooks at 801 Estelle Drive, Lancaster, Pennsylvania.
4. Mr. Brooks ceased operating the real estate business at the end of 1994 and did not make the December 30, 1994 payment.
5. Mr. Ferber and Mr. Haake did not resume operation of the real estate business, and Mr. Ferber took steps to relinquish the franchise to the franchisor as of December 31, 1994, although it is not apparent from the record whether the return of the franchise has occurred. The franchisor was owed over $7,000 in fees that Mr. Brooks had failed to pay, and notwithstanding the attempted transfer to Mr. Brooks, Messrs. Ferber and Haake remained obligated to the franchisor under the original franchise agreement.
6. Mr. Ferber has requested that Re/Max Countywide Realtors mail addressed to 801 Estelle Drive be forwarded to him. Mr. Brooks has requested that the mail be delivered as addressed.
CONCLUSIONS OF LAW
1. Mr. Brooks did not file the submittal required by 39 C.F.R. § 965.5 and thus is in default under 39 C.F.R. § 965.7. That default is sufficient to warrant denying his claim to the disputed mail. 39 C.F.R. § 965.7.
2. The termination provision of the agreement for the transfer of the business does not address entitlement to mail received after December, 1994. However, it does require that Mr. Brooks "leave the business" if he fails to make the December 30, 1994 payment. Mr. Brooks has left the business, and, although the language is not as clear as it could be, the agreement contemplates that the real estate business and franchise revert to Ferber-Haake Corporation upon Mr. Brooks' failure to make the December 30, 1994 payment.
3. Although Ferber-Haake Corporation did not resume a real estate business using the Re/Max Countywide Realtors name, at 301 Estelle or any other address, it did exercise control over the franchise after it reverted. Mr. Ferber's efforts to formally relinquish the franchise to the franchisor, apparently without opposition from Mr. Brooks, demonstrate control of the business. The possible liability of Messrs. Ferber and Haake to the franchisor for the fees incurred during Mr. Brooks' operation also shows that the transfer to Mr. Brooks was temporary and conditional, and that Messrs. Ferber and Haake and/or their corporation have recovered and control whatever remains of the Re/Max Countywide Realtors business.
4. Even though Messrs. Ferber and Haake or their corporation never conducted business using the name Re/Max Countywide Realtors at the address in dispute, it is likely that mail addressed to Re/Max Countywide Realtors at 801 Estelle Drive in Lancaster, whether it relates to Mr. Brooks' operation of the business during 1994 or not, is intended for the business and those who control it. Therefore, Ferber-Haake Corporation is entitled to delivery of the disputed mail.
5. This decision deals only with delivery of the mail. It does not determine which party is entitled to the contents of the mail. If Ferber-Haake Corporation receives mail clearly intended for Mr. Brooks, it must assure that such mail is promptly delivered to him.
6. The Postal Service will follow the order of a court requiring a different distribution of the mail.
7. The attached order should be issued.
Norman D. Menegat Administrative Judge