In the Matter of a Mail Dispute ) May 9, 1995 Between: ) ) THOMAS M. ZARR, ESQ. ) ) and ) ) RONALD VAN VOORHIS ) P.S. Docket No. MD 95-67 APPEARANCE FOR THOMAS M. ZARR: Thomas M. Zarr, Esq. 139 E. South Temple, Suite 130 Salt Lake City, UT 84111-1169 APPEARANCE FOR RONALD VAN VOORHIS: Ronald Van Voorhis 709 North 9th Street Collinsville, OK 74021-2011
INITIAL DECISION
The United States Postal Service Law Department has referred this mail dispute to this office for resolution. The mail in dispute is that addressed to UMVS, Inc., and UMVS, Inc., d/b/a Utah Medi-Van Service at 3331 South 900 East, Suite 120, Salt Lake City, UT 84106-2000 and at Dixie Professional Plaza, 620 South 400 East, Suite 106, St. George, UT 84770-3700. Disputant Thomas M. Zarr filed the sworn statement required by 39 C.F.R. §965.5 and comments permitted by 39 C.F.R. §965.6. Disputant Ronald Van Voorhis has filed an unsworn statement, in the form of a letter addressed to the Postal Service Law Department in Salt Lake City.(1) The following findings of fact and conclusions of law are based on the submittals of the parties(2) and the documents forwarded by the Law Department.
FINDINGS OF FACT
1. UMVS, Inc., was incorporated in the state of Utah in May 1994. The Articles of Incorporation list Thomas M. Zarr as the sole director, the incorporator, and the corporation's registered agent.
2. UMVS, Inc., registered two assumed names with the Utah Division of Corporations, "Utah Medi-Van Service" and "AIDCAR." The registration application for the latter name was signed by Mr. Zarr as registered agent and by Ronald Van Voorhis as president of the corporation.
3. The corporation opened for business in July 1994 using as its mailing address the 3331 South 900 East address in dispute. In August 1994 the corporation filed a "First Annual Report" with the Utah Department of Commerce, which report was signed by Mr. Zarr as director and listed Mr. Van Voorhis as president.
4. Based on Mr. Zarr's sworn statement I conclude that the stock in the corporation was divided equally among three shareholders -- Mr. Zarr, Mr. Van Voorhis and David Novelle.
5. In December 1994, Mr. Zarr and Mr. Van Voorhis had a falling out over financial matters related to the operation of the business. As of December 31, 1994, Mr. Zarr resigned as a director of the corporation, but there is no evidence he disposed of his financial interest as a shareholder in the corporation.
6. In January 1995, unknown to Mr. Zarr, Mr. Van Voorhis moved the operation of the business to St. George, Utah, and opened an office using the second disputed address, 620 South 400 East, Suite 106, St. George, UT 84770-3700, as the business' mailing address. On January 20, 1995, Mr. Van Voorhis filed a change of address order with the Postal Service directing that mail addressed to UMVS and Utah Medi-Van Service at the disputed Salt Lake City address be forwarded to the above St. George address.
7. On February 1, 1995, Mr. Van Voorhis filed at least two documents with state authorities indicating that the corporation had ceased doing business and had dissolved.(3) Both documents were filed by Mr. Van Voorhis as president and CEO.
8. On February 2, 1995, Mr. Zarr called an emergency meeting of the shareholders of UMVS to discuss the actions taken by Mr. Van Voorhis. Mr. Zarr and Mr. Novelle attended the meeting. Mr. Van Voorhis did not respond to attempts to reach him and did not attend the meeting. At the meeting, Messrs. Zarr and Novelle, who represented at least two-thirds of the shares, elected themselves and Amy M. Zarr as temporary directors of the corporation. The newly elected directors then convened a meeting of the board of directors and voted, among other matters, to remove Mr. Van Voorhis as president of the corporation and replace him with Mr. Zarr. The directors also voted to have Mr. Zarr contact the necessary state authorities to attempt to reverse the effect of the filings made by Mr. Van Voorhis the day before. On February 2, 1995, Mr. Zarr filed a "Forwarding Order Change Notice" with the Postal Service, directing that mail addressed to UMVS, Inc. d/b/a Utah Medi-Van Service be forwarded to his office at 139 E. South Temple St., Salt Lake City, instead of the St. George, UT address. On February 15, 1995, the directors filed a document entitled "Articles of Revocation of Articles of Dissolution" with the Utah Department of Commerce.
9. On February 14 and February 16, 1995, Mr. Van Voorhis again filed change of address notices, directing the UMVS, Inc. mail to his address in Collinsville, OK.
10. On March 7, 1995, Mr. Zarr issued a notice of a special meeting of
shareholders of UMVS, Inc., to be held on March 22, 1995. Mr. Van Voorhis
received the notice on March 10, 1995, but did not attend the meeting. At the
meeting, Messrs. Zarr and Novelle voted to ratify the actions taken at the
February 2, 1995 emergency meeting. At a meeting of the board of directors called
immediately thereafter, Mr. Zarr was elected president of the corporation.
CONCLUSIONS OF LAW
1. Disputant Ronald Van Voorhis did not submit a sworn statement as required by 39 C.F.R. §965.5 and is, therefore, technically in default under 39 C.F.R. §965.7. Nonetheless, Mr. Van Voorhis' unsworn submittal has been considered in reaching this decision.
2. In his submittal, Mr. Van Voorhis alleged that neither Mr. Zarr nor Mr. Novelle was a shareholder in the corporation, not having paid in capital for their stock. Accompanying Mr. Van Voorhis' submittal were documents purporting to reflect a meeting of the shareholders (Mr. Van Voorhis) at which Mr. Van Voorhis was elected chairman of the board of directors and president of the corporation. Because Mr. Van Voorhis' statement was unsworn, I resolve the conflict between the allegations of the parties in favor of Mr. Zarr, and conclude that Mr. Van Voorhis was removed from the office of president of the corporation and that Mr. Zarr was elected president in his place.
3. Under §D042.4.1 of the Domestic Mail Manual, where disagreement arises as to the delivery of mail addressed to an organization, the mail is to be delivered as directed by the organization's president or equivalent official. Since Mr. Zarr has been properly elected president of UMVS, Inc., he is entitled to direct delivery of mail addressed to that organization at the disputed addresses.
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 Mr. Zarr receives personal mail intended for Mr. Van Voorhis, he is to have that mail forwarded to Mr. Van Voorhis' location.
5. The attached delivery order should be issued.
David I. Brochstein Administrative Judge
2. The fact that Mr. Van Voorhis' submittal was unsworn does not require that I disregard it in reaching a decision in this matter. However, in case of disagreement as to the facts related to the dispute, greater weight will generally be accorded the sworn statement of Mr. Zarr.
3. The two documents referred to were (1) a letter to the Utah Public Service Commission indicating that UMVS, Inc., had ceased doing business and was voluntarily surrendering the certificate which gave it operating authority and (2) a document entitled Articles of Dissolution, filed with the Department of Commerce, Division of Corporations and Commercial Code.