February 13, 2003

In the Matter of a Mail Dispute Between

JOSEPH G. GAY

and

EXPEDITED CARGO NETWORK LTD.

P.S. Docket No.  MD 02-300

APPEARANCE FOR PETITIONER:

Joseph G. Gay

15 Eagle Street

Phelps, NY  14532-1007

APPEARANCE FOR RESPONDENT:

John J. Gilbert, Esq.

Scott & Gilbert LLP

28 S. Main Street

Canandaigua, NY  14424-1902

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) 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 P. J. Express, 15 Eagle Street, Phelps, NY 14532-1007.  The Phelps Postmaster is currently holding the mail.

            This case was docketed on June 12, 2002.  On June 21, 2002, the undersigned conducted a telephone conference with Mr. Gilbert and Mr. Kocher, the attorneys representing the parties.  The attorneys agreed to jointly pick up and distribute the disputed mail while they attempted to resolve this dispute by mutual agreement.  An Interim Order to that effect was issued to the Phelps Postmaster on June 24, 2002.  The deadline for filing additional evidence and argument, if the parties could not settle, was extended to July 30, 2002.

            On August 12, 2002, nothing having been filed, and this office having been notified by telephone that Mr. Kocher was no longer representing Mr. Gay, the parties were directed to file a status report.  Both replied, indicating that they had not been able thus far to settle the case.  Mr. Gilbert filed a copy of a Court Order dated July 30, 2002.

            We held another telephone conference on September 12, 2002, with Mr. Gilbert and Mr. Gay.  They reported that, because Mr. Kocher had withdrawn, the earlier arrangement to pick up and distribute the disputed mail had never been carried out.  Mr. Gilbert and Mr. Gay agreed that they would go together to the post office and pick up the mail that had been held and would attempt to resolve the dispute.  A second Interim Order to the Phelps Postmaster was issued on September 13, 2002.

            Another telephone conference with Mr. Gilbert and Mr. Gay was conducted on October 7, 2002.  The parties stated that they believed they were close to settling this mail dispute, along with other underlying issues, and further action was suspended until October 25, 2002, at which time the parties were to file another status report.

            An Order dated November 18, 2002 directed the parties to file the status report, or any additional evidence they wished to have considered, by November 29, 2002.  Neither party has filed any additional material.  The following findings of fact are based on the original material forwarded by the United States Postal Service Law Department, Northeast Area Office, and the Court Order filed by Mr. Gilbert on August 19, 2002.

FINDINGS OF FACT

            1.  For some years prior to March 2002, Disputant Joseph Gay owned and operated a business known as P. J. Express.  On March 21, 2002, Mr. Gay signed a Bill of Sale, conveying the name “P. J. Express,” and “all operating rights of P. J. Express in the United States,” to PJ Cargo, Inc.  The Bill of Sale also states that Mr. Gay agreed not to compete with Expedited Cargo Network, Ltd., PJ Cargo, Inc., or PJ Cargo Express, Inc.

            2.  Disputant Expedited Cargo Network, Ltd., is a Canadian corporation located in Mississauga, Ontario and operates in New York State through a subsidiary, PJ Cargo, Inc.  Diane Rewega is the President of Expedited Cargo Network, Ltd.

            3.  This mail dispute arose when Mr. Gay asserted that the buyer was in default on some of the terms of payment, and the two parties submitted conflicting delivery instructions to the Phelps Post Office.

            4.  On July 30, 2002, in a lawsuit titled, “PJ Cargo Inc., Plaintiff v. Joseph G. Gay d/b/a PJ Express, Defendant” the State of New York Supreme Court for the County of Ontario issued an Order that “Defendant, his agents, attorneys, servants or employees are hereby forbidden, restrained and enjoined from using the name PJ Express or any close derivative thereof, from holding himself out to others as operating under that or a similar name, from collecting any payments owed Plaintiff under that or similar name, and from interfering with Plaintiff’s mail or other deliveries until the issues in this action between Plaintiff and Defendant shall have finally been determined by this Court.”

DECISION

            Mr. Gay has submitted no evidence that PJ Cargo, Inc., is in default or, even if that were so, how this would entitle him to delivery of the disputed mail.  Based on the terms of the Bill of Sale, and the July 30, 2002 Court Order, Expedited is entitled to mail addressed to P. J. Express.

            This decision deals only with delivery of the mail.  It does not attempt to resolve any other disputes between the parties.  If Expedited receives any mail that is clearly intended for Mr. Gay personally, such mail must be forwarded.

            The Judicial Officer should issue an order to the Phelps Postmaster that mail addressed to P. J. Express, 15 Eagle Street, Phelps, NY 14532-1007, that has been held or is hereafter received, be delivered as directed by Diane Rewega, or another authorized representative of Expedited Cargo Network, Ltd.

                                                                                    Bruce R. Houston

                                                                                    Chief Administrative Law Judge