Appeal of March 4, 1997 - DR. ALBERT N. MONTERASTELLI and DR. RICHARD C. HARRIS

Administrative Law Judges

In the Matter of a Mail Dispute    	) March 4, 1997
Between     			   	)
			   	   	)
DR. ALBERT N. MONTERASTELLI 	   	)
				   	)
and     			   	)
			   	   	)
DR. RICHARD C. HARRIS  		   	) P.S. Docket No. MD 97-33

APPEARANCE FOR DR. MONTERASTELLI:  	Dr. Albert N. Monterastelli 
				   	32 Emerald Bay
			           	Laguna Beach, CA 92651-1264

APPEARANCE FOR DR. HARRIS: 	   	Dr. Richard C. Harris
				   	P. O. Box 1818
			           	Pomona, CA 91769-1818

INITIAL DECISION

This mail dispute has been docketed pursuant to Postal Operations Manual (POM7, August 1, 1996) Section 616.21, 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 any or all of the following: Valley Eye Surgical Group; Dr. Richard C. Harris; Dr. Albert N. Monterastelli; and Dr. Gerald T. Bowns, at 160 East Artesia Street, Suite 120, Pomona, CA 91767-2920, is being held by the Pomona, California Postmaster.

Both parties submitted sworn statements in support of their claims, in accordance with 39 C.F.R.§965.5, along with other supporting documents. On February 20, 1997, at the request of Dr. Monterastelli, the undersigned conducted a telephone conference with the two parties. Based on a possibility that the parties might be able to reach an agreement that would at least narrow the scope of this dispute, and that some of the mail being withheld could be released to the appropriate party, each party was directed to inform the Pomona, California Postmaster and the undersigned, in writing, as specifically as possible, what mail he consented to have released to the other party.

The parties were advised that whatever dispute remained would be decided in accordance with the rules and procedures set forth in 39 C.F.R. Part 965. The time for any additional comments, under 39 C.F.R. §965.6, expired on February 28, 1997. Both parties have submitted final comments. The following findings of fact are based on all the material submitted by the parties, including that forwarded by the United States Postal Service Law Department, San Francisco Office.

FINDINGS OF FACT

1. Drs. Monterastelli and Harris both practice ophthalmology. Prior to October 1992, Dr. Monterastelli owned and operated a medical practice called "Valley Eye Surgical Group," at 160 East Artesia Street, Suite 120, in Pomona, California. On October 1, 1992, Dr. Monterastelli sold this medical practice to Dr. Harris. Dr. Harris had been employed by Dr. Monterastelli since 1988.

2. The Sale Agreement stated that Dr. Monterastelli desired to retire within five years and that, during the interim, he would continue to practice at the same address, as an independent contractor hired by Valley Eye Surgical Group. To accomplish this, the two parties entered into a Professional Services Agreement, effective October 1, 1992.

3. The premises at 160 East Artesia Street had been leased by Dr. Monterastelli (Lessee) from Pomona Medical Plaza (Lessor) in 1988. On January 21, 1994, Dr. Monterastelli assigned this lease to Dr. Harris, and Dr. Harris and the Lessor signed an amendment to the lease, recognizing the assignment.

4. The relationship between the two doctors deteriorated in 1996 and disputes arose over financial matters, and eventually over receipt of the mail. In November and December 1996, Dr. Harris submitted Change of Address Orders, PS Form 3575, directing that mail addressed to Valley Eye Surgical Group; Richard C. Harris, M.D.; and Gerald Bowns, M.D., all at 160 East Artesia Street, Suite 120, Pomona, CA 91767, be forwarded to Post Office Box 1818, Pomona, CA 91769. A separate PS Form 3575 was submitted for each name.

5. Both disputants have provided information to the Pomona Postmaster since this dispute arose, and she has released some mail based on that information. Because each party then contradicted what the other told her, by mid-January 1997 the postmaster stopped releasing any mail, and the case was forwarded to the Judicial Officer. As to the mail that was released, each party also claims that the other is improperly holding mail belonging to the first party.

6. On December 19, 1996, the United States Attorney for Los Angeles, acting on behalf of the United States Internal Revenue Service, obtained from the United States District Court for the Central District of California, an "Order for Entry on Premises to Effect Levy." This Order gave IRS agents authority to enter Dr. Harris' place of business at 160 East Artesia Street, Suite 120, and seize property belonging to Richard C. and Linda Harris in order to satisfy a tax indebtedness of $469,216.38.

7. The above Order was carried out and a "Public Auction Sale" was held on January 15, 1997. Dr. Monterastelli purchased the seized property for $75,000.00. The "Certificate of Sale" lists the following:

RIGHT TO THE NAME, RIGHT TO PATIENT FILES, RIGHT TO ACCOUNTS RECEIVABLE, RIGHT TO PREMISES, RIGHT TO ASSET WORTH, RIGHT TO GOODWILL, RIGHT TO ASSET RECORDS, AND ATTACHED INVENTORY LIST.

AND ALL OTHER ASSETS ON THE PREMISES.

8. After the IRS sale, Dr. Monterastelli executed a new lease for the premises at 160 East Artesia Street, Suite 120, with the landlord, Pomona Valley Medical Plaza.

Contentions of the Parties

Dr. Monterastelli bases his claim primarily on his purchase of the right to the premises and the business through the IRS sale.

Dr. Harris makes no argument that mail addressed to Valley Eye Surgical Group, Dr. Monterastelli, or Dr. Bowns after January 15, 1997 should be forwarded to him. His complaint is twofold - first, that he is entitled to all mail addressed solely to him and/or his wife; second, that some of the mail previously released to Dr. Monterastelli really belongs to him. The first concern was resolved by the February 27, 1997 Order cited in footnote 1. The second is not a matter within the scope of a mail dispute ruling.

DECISION

Based on his purchase of the business and its assets, and the right to the business premises, on January 15, 1997, Dr. Monterastelli is entitled to mail addressed in any form to Valley Eye Surgical Group. He is also entitled to any mail addressed to himself or to Dr. Bowns at the 160 East Artesia address. He makes no claim to mail addressed only to Dr. Harris.

This decision deals only with delivery of the mail. It says nothing about any underlying business or financial disputes between the parties, nor does it determine ownership of the contents of the mail. If either party receives mail that the party knows is intended for the other, it is each party's responsibility to forward that mail. This applies to mail that has already been delivered, as well as to mail delivered in accordance with any Order issued by the Judicial Officer.

The attached delivery order should be issued.

					Bruce R. Houston	
					Administrative Law Judge