In the Matter of a Mail Dispute ) February 4, 1998 Between ) ) REED A. MILLER ) MILLER & ASSOCIATES CONSULTING ) ENGINEERS, P.C. ) ) and ) ) CHARLES E. WRIGHT ) P.S. Docket No. MD 97-475 APPEARANCE FOR DISPUTANT Denzel R. Busick, Esq. REED A. MILLER, et al.: Luebs, Leininger, Smith, Busick & Johnson P. O. Box 790 Grand Island, NE 68802-0790 APPEARANCE FOR DISPUTANT Ronald D. Mousel, Esq. CHARLES E. WRIGHT: Mousel, Garner and Rasmussen 101 West C Street McCook, NE 69001-3613
INITIAL DECISION
This mail dispute has been docketed pursuant to Postal Operations Manual, Issue 7, August 1, 1996, Section 616.21 which requires Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Charles E. Wright Consulting Engineers, Inc., P.O. Box 880, McCook, NE 69001-0880. The mail is currently being held by the McCook Postmaster.
Both parties submitted sworn statements, as required by 39 U.S.C. §965.5, and comments, permitted by 39 C.F.R. §965.6. The following findings of fact are based on the material submitted by the parties and material forwarded by the United States Postal Service Law Department, Chicago Office.
FINDINGS OF FACT
1. Disputant Charles E. Wright first rented Post Office Box 880 in 1972, when he began a sole practice as a consulting civil engineer. Mr. Wright used the box for both business and personal mail at least until 1985, when he entered into a contract through which he sold his engineering business to Disputant Reed A. Miller, and continued his services as a managing engineer for Mr. Miller. The business was later incorporated by Mr. Miller as Charles E. Wright Consulting Engineers, Inc., (the Corporation) with Mr. Miller as president. (Sworn Statements of Jacque Haupt and Charles E. Wright).
2. In December 1993, Mr. Wright entered into a consulting agreement with the Corporation. Under the agreement, Mr. Wright was to work for the Corporation for a period ending June 30, 1995, and his wife, Marjorie Wright, was also to be employed by the Corporation as the secretary to Mr. Wright. Paragraph 11 of the agreement provided:
"RECORDS. WRIGHT agrees that all memoranda, notes, records, papers and other documents and all copies thereof relating to the COMPANY'S operations or business, some of which may be prepared by him, and all objects associated therewith in any way obtained by him shall be, and shall remain, the property of the COMPANY. WRIGHT shall not, except for COMPANY use, use any such information or documents during his employment thereafter." (Attachment to Haupt Statement).
The agreement contained no express mention of the use of the post office box. At about the time the agreement was entered into, Mr. Wright was advised by Ms. Haupt (the secretary of the Corporation) and others that, during the course of his employment, his personal mail was to go to his home and not to the post office box (Haupt Statement). The evidence does not indicate that Mr. Wright concurred in that direction or followed it (see Finding 4, below).
3. For the period before 1985, Mr. Wright paid the box rental out of his own funds. From 1985 through the 1994/95 rental period, the box rent was paid using funds of the Corporation. In 1995, Mr. Wright resumed paying the box rental out of his funds and has done so through the rental period ending in 1998. In 1997, the Corporation attempted to pay the 1997/98 box rental, but its payment was returned when the McCook Postmaster discovered that the rental had already been paid by Mr. Wright. (Wright and Haupt Statements).
4. When the box was originally rented by Mr. Wright in 1972 he was given two keys, one of which he kept and the other of which was kept by Marjorie Wright. From at least 1985 until the Spring of 1995, it was Mr. Wright's practice to pick up all the mail from the box each morning, bring it all to the Corporation's business office, sort it and take out his personal mail. That practice continued until the Spring of 1995, when Mr. Miller's son asked for and was given Mrs. Wright's key. From that time on, an employee of the Corporation would pick up all the mail and bring it to the office, where Mr. Wright would pick up his own business and personal mail. (Id.).
5. The consulting agreement expired in June 1995 and was not renewed. Thereafter, both the Corporation and Mr. Wright continued to have access to and use the box. Mr. Wright would check the box on weekends and occasionally on weekdays and would leave all mail intended for the Corporation in the box. Beginning in December 1996, and continuing into 1997, Mr. Wright, through his attorney, indicated his dissatisfaction with that arrangement and sought to bring the matter to an amicable settlement.(1) Mr. Wright offered to give up the box if the Corporation was willing to reimburse him for the fees he paid in 1995 and 1996. The Corporation did not respond to that offer or to several subsequent inquiries. In September 1997, after warning the Corporation that he would do so if a settlement could not be reached, Mr. Wright had the lock on the box changed, thereby precipitating this dispute. Since September 1997, when he had the lock changed, it has been Mr. Wright's practice to either take mail addressed to the Corporation to the Corporation's office or turn it over to the Postal Service for delivery to the Corporation. (Id.).
6. In approximately June 1997, the Corporation concluded from discussions with the McCook Postmaster that his position was that the box belonged to Mr. Wright and not to the Corporation. At some point thereafter, the Corporation began to print its street address on its letterhead and has since been having its mail delivered to that address. (Haupt Statement).
DECISION
When Mr. Wright opened Post Office Box 880 in 1972 he did so as an individual, and not as a representative of the Corporation (which, of course, did not exist). At that time Mr. Wright was, by definition, the box customer. Domestic Mail Manual (DMM) §D910.1.3.(2) Under the DMM, the box customer may receive any mail properly addressed to the box number, and it is the box customer's responsibility to forward mail intended for other persons but addressed to the box number. DMM §§D910.3.1, D910.3.8.
The evidence does not indicate that Mr. Wright ever agreed to cease using the box for his personal mail, even after he sold his business to Mr. Miller. The only contrary indication is the fact that the Corporation directed Mr. Wright to cease using the box for personal mail "during the course of his employment." In fact, however, it appears that both Mr. Wright and the Corporation continued to use the box jointly for both personal and business mail during the entire period of Mr. Wright's association with the business.
Mr. Miller argues that the language in paragraph 11 of the consulting agreement (Finding 2) constituted an agreement that use of the box would be transferred to the Corporation. However, the language is not sufficiently explicit to conclude that such a transfer was intended. Further, the continued use of the box by Mr. Wright for his personal mail during the entire period covered by the consulting agreement leads to the conclusion that the Corporation did not then interpret that portion of the agreement as it now urges. In addition, under these facts, the source of the funds used to pay the rent is not persuasive evidence of an intent to transfer the right to receive mail addressed to the box.
Based on this record, I conclude that Mr. Wright remains the box customer with respect to Post Office Box 880 and may, generally, direct the delivery of mail addressed to that box. However, as evidenced by Mr. Wright's conduct (Finding 5), it is apparent that he does not wish to receive mail addressed to the Corporation. Accordingly, mail addressed to Charles E. Wright Consulting Engineers, Inc. should be delivered to the Corporation's street address or as otherwise directed by the president of the Corporation. Cf. Mark Burnett, P.S. Docket No. MD-133, November 7, 1991. Other mail addressed to P.O. Box 880 should be delivered as addressed.
This decision addresses only the right to delivery of the mail and does not reflect any opinion as to the ownership of the mail. If Mr. Wright receives mail intended for the Corporation, he is to ensure that such mail is forwarded promptly.
The attached delivery order should be issued.
David I. Brochstein Administrative Judge
2. "The term 'box customer' applies only to the person who signs the application as an individual or to the organization in whose behalf an individual signs the application." The quoted language is from the current version of the DMM. Similar language appears in previous versions.