In the Matter of a Mail Dispute ) March 31, 1997 ) Between ) ) ) ) ROBERT BORTOLON ) ) and ) ) ) SHAUN ROVAI ) P.S. Docket No. MD 97-67 APPEARANCE FOR DISPUTANT Charles P. Franklin, Esq. ROBERT BORTOLON: Franklin & Associates 20 East University Drive, Suite 301 Tempe Towne Center Tempe, AZ 85281-3676 APPEARANCE FOR DISPUTANT Elizabeth A. Fox, Esq. SHAUN ROVAI: Buchalter, Nemer, Fields & Younger 333 Market Street, 29th Floor San Francisco, CA 94105-2130
This mail dispute has been docketed pursuant to Postal Operations Manual (POM 7, 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 is that addressed to Auto-Tech Collision Centers, Inc., d/b/a Cavalon Collision, 4040 East Washington, Phoenix, AZ 85018-1820. The mail is currently being held by the Phoenix 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. The following findings of fact are based on the parties' submissions and information from the Postal Service that was included in the file referred to the Judicial Officer.
FINDINGS OF FACT
1. Robert Bortolon is President and owner of Auto-Tech Collision Centers, Inc., d/b/a Cavalon Collision (Cavalon). Shaun Rovai is the Director of Collateral for AeroFund Financial (AeroFund). On or about November 1, 1996, Cavalon entered into an agreement with AeroFund to sell its account receivables to AeroFund. The term of this agreement was for two years and from year to year thereafter unless terminated in writing by either Seller or Purchaser. (Statement of Bortolon; Agreement for Purchase of Accounts (Agreement)).
2. Section 2(e) of the Agreement authorized the creditor, Aerofund, to receive, open, and dispose of all mail addressed to the debtor, Cavalon, for the purpose of collecting accounts and to execute debtor's name on any post office change of address form. (Statement of Rovai; Agreement).
3. Section 13, VENUE, of the Agreement provides, inter alia, that the parties agree that the forum to resolve any dispute concerning interpretation, performance or breach of the Agreement shall, at the election of AeroFund, be instituted in the Federal District Court for the Northern District of California or in California State Court located in San Francisco, California (Agreement).
4. On November 14, 1996, by fax, AeroFund notified Cavalon that it would extend a credit line to Cavalon in accordance with Schedule #002, in an amount up to $5,000.00. (Statement of Bortolon; New Debtor Information Sheet).
5. On November 21, 1996, Cavalon notified AeroFund that it was rescinding the Agreement between Cavalon and AeroFund ". . . due to AeroFund's breach of the payment agreement" (Statement of Bortolon).
6. On November 25, 1996, AeroFund executed Cavalon's name on two post office change of address forms (Statement of Rovai).
DECISION
The general rule is that the addressee may control delivery of its mail. Domestic Mail Manual D042.1.1. In this case, however, section 2(e) of the Agreement for Purchase of Accounts between the parties prevails. This section gives AeroFund the right to receive, open and dispose of all mail addressed to Cavalon and to execute in Cavalon's name a change of address with the post office. (Finding of Fact No. (FOF) 2).
The Agreement has an initial term of two years (commencing on November 4, 1996) (FOF 1). AeroFund's action in executing the change of address forms occurred in the first month of the Agreement. Cavalon argues, nevertheless, that it rescinded the Agreement because of an alleged breach by AeroFund. However, the record in the matter does not provide sufficient evidence to determine that the agreement has been breached. Further, the parties have already agreed in section 13, VENUE, of the Agreement that disputes concerning alleged breaches of the Agreement shall be resolved in either Federal District Court in California or in California State Court (FOF 3). Therefore, unless the parties mutually agree otherwise, or a court of competent jurisdiction orders otherwise, AeroFund has the right to direct the delivery of the disputed mail.
This decision determines only the right to direct delivery of mail addressed to Auto-Tech Collision Centers, Inc., d/b/a Cavalon Collision, 4040 East Washington, Phoenix, AZ 85018-1820. It does not determine the question of ownership of the mail, nor does it address the underlying dispute between the parties. If either party receives mail that it knows is intended for the other, it is each party's responsibility to forward that mail.
The attached delivery order should be issued.
William K. Mahn Administrative Judge