October 12, 2000 In the Matter of a Mail Dispute Between ROBIN L. TRIVETTE and DAVID A. DILLINGER P.S. Docket No. MD 00-310 APPEARANCE FOR DISPUTANT Robert A. Blake, Jr., Esq. ROBIN L. TRIVETTE: 435 East Morehead Street Charlotte, NC 28202-2609 APPEARANCE FOR DISPUTANT Derek E. Dittner, Esq. DAVID A. DILLINGER: Gorman & Associates 7422 Carmel Executive Park, Suite 200 Charlotte, NC 28226-0428
INITIAL DECISION
This mail dispute has been docketed pursuant to Postal Operations Manual (POM 8, July 16, 1998) 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 Trackside Inc., at 5254 Pit Road South, Harrisburg, NC 28075-8718, and at 5620 Concord Parkway South, Suite 201, Harrisburg, NC 28075-7593. The Harrisburg Postmaster is currently holding the mail.
Both parties filed sworn statements, and other documents in support of their positions, as required by 39 C.F.R. §965.5. The following findings of fact are based on all the material submitted by the parties, including the material forwarded by the United States Postal Service Law Department, Mid-Atlantic Office.
FINDINGS OF FACT
1. Prior to June 2000, Ms. Trivette was the owner and sole shareholder of Trackside, Inc., a travel business that operated at 5620 Concord Parkway South, Suite 201, Harrisburg, NC. Formerly, Trackside, Inc. had operated at 5254 Pit Road South, also in Harrisburg. (Trivette affidavit; Dillinger affidavit).
2. On June 28, 2000, Trackside ("the Company") entered into an Asset Purchase Agreement with Victory Lane Travel, Inc. ("Buyer"). This Agreement was signed by Ms. Trivette, as President of Trackside, and Mr. Dillinger, as President of Victory Lane. (Trivette affidavit; Dillinger affidavit; copies of Agreement attached to both affidavits).
3. The Agreement stated that the Buyer was to purchase "substantially all of the assets of the Company." This included not only all the tangible property, but also such things as, "rights to use telephone numbers, hotel contracts, work in progress," and "goodwill, client and customer lists." The Agreement also gave the Buyer the right to use the name "Trackside." Ms. Trivette also signed a "Covenant Not To Compete." (Trivette affidavit; Dillinger affidavit; copies of Agreement attached to both affidavits).
4. The Agreement also stated:
"Seller shall keep, and be entitled to, all monies and accounts receivable, for all checks and monies that are received at the Speedway Office [5620 Concord Parkway South] by Buyer after the Date of Closing, and prior to July 31, 2000. After said date, such accounts receivable shall be the sole property of Buyer."
5. On June 27, 2000, Ms. Trivette submitted two PS Forms 3575, Change of Address Form, directing that mail addressed to Trackside at the two disputed addresses be forwarded to P. O. Box 7443, Daytona Beach Shores, FL 32116-7443. (Law Department submission).
6. Victory Lane Travel, Inc. is currently operating its business at 5620 Concord Parkway South, in Harrisburg, NC 28075-7593. (Dillinger affidavit).
DECISION
Ms. Trivette argues the Agreement entitles her to all mail addressed to Trackside that was sent before July 31, 2000. She also asserts that Victory Lane Travel, Inc. breached a provision of the Agreement pertaining to rent, and also failed to make the August installment of the purchase price. Therefore, Ms. Trivette fears that she will not get the pre-July 31 accounts receivable to which she is entitled if the mail is delivered to Victory Lane.
In his affidavit, Mr. Dillinger agrees that "Victory Lane is contractually bound to forward any checks it receives dated prior to July 31, 2000 to Robin Trivette and Trackside," but argues that the Agreement does not entitle Ms. Trivette to receive all business mail addressed to Trackside, either before or after July 31.
My reading of the Agreement is consistent with Mr. Dillinger's argument. The Agreement does not require that all Trackside's mail sent before July 31 be delivered to Ms. Trivette, only that she is entitled to money and checks sent before that date. The mail should be delivered to the person or entity now operating the business, i.e., Victory Lane Travel, Inc., or Mr. Dillinger. It is Mr. Dillinger's obligation under the contract, as he acknowledges in his affidavit, to forward money or checks dated before July 31 to Ms. Trivette.
This decision deals only with delivery of the mail. It does not attempt to resolve any financial disputes between the parties. If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order. POM §616.3.
The Judicial Officer should issue an Order to the Harrisburg Postmaster directing that the disputed mail be delivered as directed by Mr. Dillinger.
Bruce R. Houston Chief Administrative Law Judge