United States Postal Service(TM)
Administrative Law Judges 


In the Matter of a Mail Dispute  	) 	December 23, 1997         
Between                          	)
                                 	)
LAWRENCE DiGIORGIO               	)
                                 	)
        and                      	)
                                 	)
JOHN FLORIO                      	) 	P.S. Docket No. MD 97-390


APPEARANCE FOR DISPUTANT		Lawrence DiGiorgio
  LAWRENCE DiGIORGIO:			88 Hazlet Avenue
					Hazlet, NJ  07730-1666


APPEARANCE FOR DISPUTANT		John Meunkle, Esq.
  JOHN FLORIO:				600 Old Country Road., Suite 327
					Garden City, NY  11530-2010

INITIAL DECISION

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 PIONEER RECYCLING CORPORATION, 527 W. 29th Street, New York, NY 10001. The mail is currently being held by the New York Postmaster.

Both parties made submissions, although neither submission contained the sworn statement of the disputant, as is specified in 39 C.F.R. §965.5.

In addition to his submission, Disputant Lawrence F. DiGiorgio filed a motion to find Disputant John Florio in default for failure to timely file a sworn statement. This motion, although dated December 1, 1997, was not received by this office until December 9, 1997. Prior to receipt of this motion, by Order dated December 3, 1997, the undersigned granted Mr. Florio an extension until December 5, 1997, to make a submission. Disputant Florio filed his submission on December 5, 1997. Accordingly, this motion is denied.

The following findings of fact are based on the parties' submissions and the documents from the Postal Service that were included in the file referred to the Judicial Officer.

FINDINGS OF FACT

1. Disputants John Florio and Lawrence DiGiorgio, as well as Marilyn DiGiorgio, are the sole shareholders and officers of Pioneer Recycling Corporation (Stipulation and Agreement (between the parties), dated January 31, 1997 (Stipulation)).

2. In 1991, the DiGiorgios filed a lawsuit with the Supreme Court of the State of New York for the dissolution of the corporation. This lawsuit led to a Stipulation and Agreement between the parties, entered into on January 31, 1997, in which they agreed that Mr. Florio was the president of the corporation and owned 50% of the shares of the corporation, that Lawrence DiGiorgio was the vice president and Marilyn DiGiorgio was the secretary/treasurer, each owning 25% of the shares of the corporation. (DiGiorgio Submission; Stipulation).

3. The Stipulation and Agreement further provided that each shareholder of the corporation had one (1) vote, notwithstanding the percentage of ownership of the corporation possessed by each shareholder ("one officer, one vote") (Stipulation).

4. Paragraph 11, Written Consent of Shareholders, of Article II of the by-laws of Pioneer Recycling Corporation, provides that any action taken without a meeting, must be taken by written consent, setting forth the action so taken and signed by the holders of all outstanding shares of the corporation (Florio Submission).

5. Article III, Directors, of the by-laws of Pioneer Recycling Corporation specifies that the business of the corporation shall be managed by its board of directors. The by-laws further specify that the directors of the corporation are its shareholders; i.e., John Florio, Marilyn and Lawrence DiGiorgio. Finally, Article III of the by-laws specifies that there must be three directors unless all the shares of the corporation are owned by less than three shareholders. (Florio Submission).

6. In August-September 1997, a disagreement arose between the owners of Pioneer Recycling Corporation. Mr. Florio changed the locks to the offices of the corporation, effectively locking out the DiGiorgios. Mr. DiGiorgio then placed a hold on the mail addressed to the corporation, and this mail dispute ensued. (DiGiorgio Submission).

7. As of December 5, 1997, the Secretary of State of the state of New York lists the address of Pioneer Recycling Corporation as 527 West 29th Street, New York, NY 10001.

DECISION

Disputant Florio contends that he is still an officer and a 50% owner of the corporation, that he has not authorized a change of address for the corporation and that, under the by-laws of the corporation, a change of address could not occur without his approval. Disputant DiGiorgio contends that Mr. Florio is no longer an officer of the corporation and that he has replaced Mr. Florio as president and has the authority to change the address of the corporation.

It is undisputed by the parties that at least until August of 1997, Mr. Florio was the president and 50% owner of the corporation. Although the directors of the corporation could remove Mr. Florio as president (Finding 5), Mr. DiGiorgio has failed to demonstrate that the directors, in fact, took that action.

Mr. DiGiorgio's submission does include an unsigned letter, dated September 12, 1997, which purports to notify Mr. Florio that he (Mr. Florio) was present at a meeting of the Board of Directors on August 4, 1997, at which Mr. Florio was removed as president of the corporation. This letter refers to meeting minutes which were allegedly recorded and voted on. However, neither party to this dispute has submitted the minutes of this or any other meeting of the board of directors of the corporation. In the absence of such minutes, or other evidence indicating the written consent of the shareholders to the removal of Mr. Florio as president of the corporation (Finding 4), this unsigned letter does not prove Mr. DiGiorgio's allegation that Mr. Florio was removed as president of the corporation.

Thus, based on the record of this mail dispute, Mr. Florio remains the president of Pioneer Recycling Corporation. As the president of the corporation, Mr. Florio is entitled to control delivery of the mail. See Domestic Mail Manual §D042.4.1 (January 1, 1997).

This decision concerns only the delivery of the disputed mail. It does not address ownership of the contents of the mail, nor does it address ownership or control of Pioneer Recycling Corporation, or any other dispute that may exist between the parties. Further, if a court directs delivery of the mail in a different manner, the mail will be delivered according to the court order.

The attached delivery order should be issued.





							William K. Mahn
							Administrative Judge