Appeal of PETER WALTER and RICHARD WALTER - P.S. Docket No. MD 98-154

In the Matter of a Mail Dispute ) May 12 1998
Between     			)
      				)
PETER WALTER    		)
      				)
     and     			)
      				)
RICHARD WALTER   		) P.S. Docket No. MD 98-154

APPEARANCE FOR DISPUTANT 	Thomas L. Frenn, Esq.
   PETER WALTER:    		Petrie & Stocking, SC
      				111 E. Wisconsin Avenue, Suite 1500
      				Milwaukee, WI  53202-4815

APPEARANCE FOR DISPUTANT 	Brendan J. Rowen, Esq.
   RICHARD WALTER:   		1233 North Mayfair Road, Suite 210
      				Wauwatosa, WI  53266-3255

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 Primary Care Associates, Ltd., a/k/a Primary Care Associates, 2810 Crossroads Drive, Suite 3200, Madison, WI 53718-7945. The mail is currently being held by the Madison, Wisconsin Postmaster.

Both parties to this dispute made submittals in support of their claims, although only Mr. Richard Walter submitted a sworn statement in accordance with 39 C.F.R. §965.5. 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. It is undisputed that Richard Walter was the president and chief executive officer of Primary Care Associates, Ltd., at least until January 16, 1998. He owns 39% of the stock of the corporation. (Sworn Statement of Richard Walter; Affidavit of Thomas L. Frenn).

2. Disputant Peter Walter owns 51% of Primary Care Associates, Ltd. (Affidavit of Thomas L. Frenn). However, in August of 1997, he left the company and moved to Havana, Cuba. Peter Walter had little day-to-day involvement with the corporation during the year preceding his departure to Havana, Cuba. (Sworn Statement of Richard Walter).

3. In November 1997, Peter Walter returned to Madison, Wisconsin and demanded that Richard Walter return the corporation to him (Sworn Statement of Richard Walter).

4. On January 15, 1998, Disputant Richard Walter obtained a temporary restraining order from the Dane County Circuit Court of the State of Wisconsin restraining Disputant Peter Walter from removing any officers or directors from Primary Care Associates, Ltd., or to hold any shareholder meeting for that purpose. This restraining order remained in effect as of May 5, 1998. (Postal Service submission; Rebuttal submission of Richard Walter).

5. On January 16, 1998, Disputant Peter Walter held a special shareholder meeting of Primary Care Associates, Ltd. A Corporate Resolution voted on at this meeting purported to elect Peter Walter as chairman of the board and the chief executive officer of the corporation. However, the resolution concluded by specifically stating that it "does not remove Richard Walter as Chief Executive Officer" of the corporation. Thereafter, Peter Walter asserted to Postal Service officials that he was the president and chief executive officer. (Submission of Peter Walter; Postal Service submission).

DECISION

Disputant Richard Walter contends that he remains the President of Primary Care Associates, Ltd., and that the temporary restraining order issued by the Circuit Court of the State of Wisconsin on January 15, 1998, remains in effect, preventing Peter Walter from removing him from office. Disputant Peter Walter contends that he is the majority stockholder of the corporation and, as such, he has the right to receive the corporation's mail.^1/

It is undisputed by the parties that at least until January 16, 1998, Disputant Richard Walter was the President of Primary Care Associates, Ltd. On that date, Disputant Peter Walter, who was a 51% owner of the corporation called a special shareholder meeting at which he purported to appoint himself chairman and chief executive officer. However, the same corporate resolution specifically noted that Richard Walter remained the chief executive officer of the corporation. (Finding of Fact No. (FOF) 4).

It is unclear from this "Corporate Resolution" whether it truly purports to remove Richard Walter as the president of the corporation. However, to the extent that the actions taken by Peter Walter on January 16, 1998, were intended to remove Richard Walter as president, they were plainly in contravention of the temporary restraining order issued by the Dane County Circuit Court. Moreover, there is no evidence that any of the actions taken at this meeting were in keeping with the corporate by-laws^2/ of Primary Care Associates, Ltd.

Since the actions taken at the special shareholder meeting apparently violated the temporary restraining order, and may have violated the corporation's own by-laws, it cannot be concluded that Richard Walter is no longer the president of the corporation. Accordingly, I conclude that Disputant Richard Walter remains the president of Primary Care Associates, Ltd. As the president of the corporation, Richard Walter is entitled to control delivery of the mail. See Domestic Mail Manual §D042.4.1 (January 1, 1997).

In addition, since Peter Walter has had no day-to-day involvement with the corporation since approximately August of 1996 (FOF 2), it is more likely that Richard Walter is the intended recipient of mail addressed to Primary Care Associates, Ltd.

This decision concerns only delivery of the disputed mail. It does not address ownership of the contents of the mail, nor does it address ownership or control of Primary Care Associates, Ltd., 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. See POM 616.3.

The attached delivery order should be issued.

        				William K. Mahn
        				Administrative Judge

1. As previously noted, Peter Walter did not submit a sworn statement. However, his attorney Thomas L. Frenn, submitted an affidavit in which he acknowledges that Richard Walter continues to be the chief executive officer of Primary Care Associates, Ltd.

2. Although the meeting minutes referenced the adoption of new corporate by-laws, a copy of those by-laws was not submitted by either party.