In
the Matter of a Mail Dispute Between
ALLEN
SILVERSTEIN
and
BRADFORD
G. AMIDZICH
P.S. Docket No. MD 05-169
APPEARANCE FOR DISPUTANT ALLEN SILVERSTEIN:
Allen Silverstein
APPEARANCE FOR DISPUTANT BRADFORD G. AMIDZICH:
Bradford G. Amidzich
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 Vent-Matic Company, Inc., 2281 Swan Boulevard, Wauwatosa, WI 53226-2652. The Wauwatosa Postmaster is currently holding the mail.
Neither party filed sworn written statements, as required by the Rules of Practice, 39 C.F.R. §965.5. The following findings of fact are based on the material forwarded by the United States Postal Service Law Department, Chicago Office.
FINDINGS
OF FACT
1. Vent-Matic Company, Inc., was incorporated in July 1996. Bradford G. Amidzich was President. The only two directors and shareholders of the corporation were Mr. Amidzich and Mr. Silverstein. (Amidzich letter, August 2, 2005).
2. On September 21, 2004, Mr. Silverstein held a Special Meeting of Shareholders. The only attendees were Mr. Silverstein, Mr. Silverstein’s attorney (Mr. Cade), and Mr. Amidzich’s attorney (Mr. Brady). Mr. Amidzich issued the notice of the meeting on August 27, 2004, but did not attend. (Silverstein letter, July 28, 2005: Cade affidavit and exhibits attached).[1]
3. At the September 21, 2004 meeting, Mr. Silverstein nominated himself to serve as the corporation’s sole Director and, being the only voter, was unanimously elected. At a meeting of the Director held immediately thereafter, Mr. Silverstein nominated himself to be President, Secretary and Treasurer. Again, he cast the only vote and was unanimously elected. (Cade affidavit and exhibits attached).
4. Mr. Cade prepared minutes of both meetings and sent a copy to Mr. Brady, who agreed that the minutes were accurate (Cade affidavit and exhibits attached).
5. In an August 2, 2005 letter to a postal supervisor, Mr. Amidzich stated that any change in “corporate structure” requires a majority vote and that he “did not vote myself out of office.” (Amidzich letter, August 2, 2005).
6. At some time during the dispute over control of the corporation, Mr. Amidzich directed that the corporation’s mail be forwarded to his address. Mr. Silverstein protested and this mail dispute arose.
7. POM
Section 614.1 provides:
All mail addressed to a governmental or nongovernmental
organization . . . at the address of the
organization is delivered to the organization. . . . If disagreement arises about where any such
mail should be delivered, it must be delivered according to the order of the
organization’s president or equivalent official.[2]
DECISION
The only issue in this case is whether the actions of Mr. Silverstein on September 21, 2004 lawfully removed Mr. Amidzich and installed himself as President of the corporation.
The Wisconsin statute governing business corporations, in the section dealing with voting, states that a quorum is a majority of shareholders unless the Articles of Incorporation or By-Laws provide otherwise (Wis. Stat. §180.0824). The statute also states that a Special Meeting of Shareholders may be called by the Board of Directors or any person so authorized by the Articles of Incorporation or By-Laws (Wis. Stat. §180.0702). The statute further requires that notice of the meeting be given at least ten days, but not more than 60 days, before the meeting, and that the notice give a description of each purpose of the meeting (Wis. Stat. §180.0705).
The case file does not include a
copy of the Articles of Incorporation or By-Laws for Vent-Matic Company, or a
copy of the notice of the Special Meeting.
The sworn affidavit from Mr. Cade, stating his opinion that the notice
of the election of directors and officers was properly given, and that the
meeting was conducted in accordance with Wis. Stat. §180.0702 may be sufficient to demonstrate that it was proper to
hold the meeting. It does not
demonstrate that a quorum was present, however.
Mr. Amidzich has challenged the validity of the September 21, 2004
election and Mr. Silverstein has not shown that the Articles of Incorporation
or By-Laws authorize a vote by less than a majority of shareholders. There is nothing in the case file to suggest
that Mr. Silverstein and Mr. Amidzich are not equal shareholders.
I conclude, therefore, that Mr. Amidzich is still the “president or equivalent official,” of Vent-Matic Company, Inc. and is entitled to direct delivery of the mail.
This decision deals only with delivery of the mail. It does not attempt to decide underlying financial disputes or any other dispute 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 Wauwatosa, Wisconsin Postmaster that mail addressed to Vent-Matic Company, Inc., 2281 Swan Boulevard, Wauwatosa, WI 53226-2652, be delivered as directed by Bradford G. Amidzich.
Bruce
R.
Chief Administrative Law Judge
[1] Mr. Cade’s affidavit and the attached exhibits were
filed in Wisconsin Circuit Court, Waukesha County, in a suit titled “Vent-Matic
Company, Inc. v. Bradford Amidzich.