In the Matter of a Mail Dispute Between
JACK E. GRULKE
and
JEANETTE D'ANNEO
P.S. Docket No. MD 05-188
APPEARANCE FOR DISPUTANT JACK E. GRULKE:
Jack
APPEARANCE FOR DISPUTANT JACK E. GRULKE:
Jeanette D'Anneo
6220 W. Hillsborough Avenue
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 Tampa Mazda Repair & Service, or TMR & S, Inc., at 6220 W. Hillsborough Ave., Tampa, FL 33634-5233. The Tampa Postmaster is currently holding the mail.
Both parties filed sworn written statements, as required by the Rules of Practice, 39 C.F.R. §965.5, accompanied by other supporting documents, and Ms. D’Anneo filed rebuttal, as permitted by 39 C.F.R. §965.6. The following findings of fact are based on all the material submitted by the parties, including that forwarded by the United States Postal Service Law Department, Tampa Office.
FINDINGS OF FACT
1. On July 18, 2005, Jack Grulke, owner and president of Tampa Mazda Repair & Service, or TMR & S, Inc., entered into an Asset Purchase Agreement with Jerome D’Anneo and Jeanette D’Anneo. Mr. Grulke signed the Agreement as “Seller,” and both D’Anneos signed as “Buyer.” (Grulke statement; D’Anneo statement; Agreement attached to both).
2. The sale was completed, as evidenced by a Bill of Sale dated August 1, 2005 (attached to both statements).
3. The Agreement states that Seller desires to sell and Buyer desires to buy “all of the assets of Seller used or useful in connection with the operation of the Business.” Further, the Agreement states that “Seller agrees to sell and Buyer agrees to purchase, . . ., the Business, . . ., including without limitation, all records, customer lists, advertising contracts, correspondence, advertisements, artboards and other artwork and graphic materials, files, the trademark ‘Tampa Mazda Repair & Service,’ the goodwill of the business as a going concern, stock in trade and equipment as described in Exhibit A.” (Agreement: preamble and paragraph 1).
4. Immediately following the sentence quoted above, the Agreement states that, “specifically excluded are the personal tools of Jack E. Grulke, the right to the exclusive use of the name Tampa Mazda Repair & Service, any license, trademark or other restriction on the use of such name, and all other property, except as hereinafter set forth, used by the Seller in the operation of the Business, . . ..” (Agreement: paragraph 1).
5. Paragraph 2 of the Agreement, under the heading, “Purchase Price,” lists five segments that make up the total price. These include “Tradename: $1,000.00.” (Agreement: paragraph 2).
6. The Bill of Sale, signed by Mr. Grulke on August 1, 2005, states that Mr. Grulke sold and delivered to the purchasers, “The assets of Tampa Mazda Repair and Service, . . . including equipment as contained in the equipment schedule attached hereto, marked as Exhibit A, inventory, trade name, existing telephone number and good will.” (Bill of Sale, attached to Grulke statement and to D’Anneo statement).
7. Since August 1, 2005, the D’Anneos have been operating the business at 6220 W. Hillsborough Ave., apparently under the name Tampa Mazda Repair & Service. (D’Anneo statement).
8. At some time after August 1, 2005, Mr. Grulke submitted a change of address order to the Tampa Post Office, directing that the disputed mail be forwarded to another address. The D’Anneos protested and this mail dispute arose.
DECISION
Mr. Grulke argues that the D’Anneos did not purchase the stock of his corporation, that his corporation still exists and that he, therefore, is still entitled to receive the mail. The D’Anneos argue that they purchased the entire business, including the trade name, and are now operating the business, and that mail addressed to the business is intended for them.
Despite the confusing language regarding the trade name in paragraph 1 of the Agreement (see Findings #3 and 4), the evidence as a whole, including the language in the Bill of Sale, demonstrates that the D’Anneos purchased the entire business, including the right to use the name “Tampa Mazda Repair & Service.” One of the primary principles in resolving mail disputes is that mail should be delivered to the party that the senders intend to receive it. As the D’Anneos now own and are operating the business known as Tampa Mazda Repair & Service, at 6220 W. Hillsborough Ave., it is likely that mail sent to the business at that address is intended for them.
If, as Mr. Grulke contends, he still owns a corporation known as TMR & S, Inc., it is possible that some of the disputed mail may belong to him. He has not argued, however, that mail addressed to TMR & S, Inc., should be separated from mail addressed to Tampa Mazda Repair & Service. Both parties are claiming all the mail addressed to any variation of the name. On the facts presented, it appears that the names are used interchangeably and I find no reason for separating the mail.
This decision deals only with delivery of the mail. It does not determine ownership of the contents of the mail and does not attempt to resolve any underlying disputes between the parties. If the D’Anneos receive mail that is intended for Mr. Grulke, it is their responsibility to forward that mail. 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 Tampa Postmaster that the disputed mail be delivered as directed by Jeannette D’Anneo.
Bruce R. Houston
Chief Administrative Law Judge