Appeal of R. MICHAEL JOYCE and TREVA L. THOMPSON and BALDEMAN J. TEIXEIRA

Administrative Law Judges

In the Matter of a Mail Dispute	) June 14, 1995
 Between			)
				)
R. MICHAEL JOYCE		)
				)
	and			)
				)
TREVA L. THOMPSON and		)
BALDEMAN J. TEIXEIRA		) P. S. Docket No. MD 95-175

APPEARANCE FOR MR. JOYCE:	R. Michael Joyce
				2285 Ham Brown Road
				Kissimmee, FL  34746-4057

APPEARANCE FOR MR. THOMPSON
	and MR. TEIXEIRA:	Treva L. Thompson
				2600 Derby Drive
				Kissimmee, FL 34744-3969

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 National Septic Services, Inc., 2600 Derby Drive, Kissimmee, Florida 34744-3969. The mail is currently being held by the Kissimmee Postmaster.

Both parties filed unsworn statements and documents in support of their claims to the disputed mail. Mr. Joyce filed comments to Mr. Thompson's submittal. The following findings of fact are based on the submissions of the parties and information from the Postal Service that was included in the file referred to the Judicial Officer.

FINDINGS OF FACT

1. Prior to September 1994, Messrs. Joyce and Thompson jointly operated a septic and sewer service business at 2600 Derby Drive in Kissimmee known as National Environmental Systems, Inc.

2. The parties severed their business relationship in late 1994, with Mr. Thompson remaining at 2600 Derby Drive and Mr. Joyce operating from a different address in Kissimmee, and a dispute arose regarding delivery of the company's mail. In an Initial Decision dated February 15, 1995, that became final on March 20, 1995, the Judicial Officer determined that Mr. Joyce was entitled to all mail addressed to National Environmental Systems, Inc., or National Environmental Systems, or Michael Joyce d/b/a National Environmental Systems at 2600 Derby Drive.

3. On March 13, 1995, Mr. Thompson incorporated National Septic Services, Inc., as a Florida corporation to perform septic system services. The corporation conducts business from 2600 Derby Drive, and Mr. Thompson is its president.

4. On April 7, 1995, Mr. Joyce submitted a change of address order requesting that mail addressed to National Septic Services at 2600 Derby Drive be forwarded to him. Mr. Joyce contends that Mr. Thompson created National Septic Services, Inc., to circumvent the decision giving Mr. Joyce the mail of National Environmental Systems at the same address and to steal business and revenues that are the property of National Environmental Systems. Mr. Thompson has requested that the mail be delivered as addressed.

CONCLUSIONS OF LAW

1. When two firms that have used the same or confusingly similar names and mailing addresses enter conflicting orders at the post office for the delivery of the same mail, delivery will be made to the firm that is the most likely recipient intended by the senders. Advanced Telecommunications, Inc., P. S. Docket No. MD-99 (November 16, 1990) modified on remand January 18, 1991; see Vol. I, Opinions of the Solicitor of the Post Office Department, p. 860 (1883). The name picked by Mr. Thompson for his corporation is similar to that of National Environmental Systems, Inc., which provided similar service from the same 2600 Derby Drive address. However, the name National Septic Services, Inc., is not so similar to National Environmental Systems, Inc., that reasonable persons would be confused about the company they were dealing with. Therefore, it is most likely that those sending mail addressed to National Septic Services, Inc., intend that it be delivered to that addressee.

2. Section D042.4.1 of the Postal Service's Domestic Mail Manual provides that mail addressed to a corporation will be delivered to the corporation or as directed by the president of the corporation. Therefore, Mr. Thompson is entitled to direct delivery of mail addressed to National Septic Services, Inc. Mr. Joyce has shown no ownership of or other connection to the corporation that would allow him to control delivery of its mail.

3. Resolution of this dispute determines only the right to direct delivery of mail addressed to National Septic Services, Inc., 2600 Derby Drive. It does not determine the question of ownership of the mail nor does it attempt to resolve any other dispute between the parties. If Mr. Thompson receives mail clearly intended for Mr. Joyce or National Environmental Systems, he must assure that it is promptly delivered to them.

4. The Postal Service will follow the order of a court requiring a different distribution of the mail.

5. The attached order should be issued.

					Norman D. Menegat
					Administrative Judge