April 22, 2005
In the Matter of a Mail Dispute
Between
CHARLES DINARDO
and
SHERRYL KOONTZ
P.S. Docket No. MD 05-35
APPEARANCE FOR DISPUTANT CHARLES DINARDO:
Bradley S. Dornish, Esq.
1207 5th Avenue
Pittsburgh, PA 15219-6211
APPEARANCE FOR DISPUTANT SHERRYL KOONTZ:
Frederick A. Sproull, Esq.
445 Fort Pitt Boulevard, Suite LL500
Pittsburgh, PA 15219-1358
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 Hair Loss Clinic, Hair
Loss Control, Hair Loss Center, and/or Hair Clinic, at 7170 Steubenville Pike,
Oakdale, PA 15071. The Oakdale
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, along with other
documents.[1] Ms. Koontz’s sworn statement was filed in
rebuttal, in accordance with 39 C.F.R. §965.6.
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, Philadelphia Field Office.
FINDINGS OF FACT
1. On December 2, 2003, Charles and Charlotte
DiNardo, then the owners of the business known as Hair Loss Clinic, Inc.,
entered into an installment sales agreement with Ms. Koontz as purchaser. (Dornish statement; Koontz rebuttal
statement).
2. Ms. Koontz immediately took possession of
the premises at 7170 Steubenville Pike and began operating the business. On February 1, 2004, Ms. Koontz (“Borrower”)
signed a Promissory Note and a Loan and Security Agreement in favor of the
DiNardos, whereby she agreed to pay a specified amount of principal and interest
each month for a term of five years. As
security for the loan, or extension of credit, the DiNardos (“Lender”) were
given a continuing lien and security interest in all goods, products, accounts,
and equipment, etc. (Dornish statement;
Koontz rebuttal statement; Loan and Security Agreement attached to Dornish
statement; Promissory Note attached to Koontz original submission).
3. In the event of default by Borrower, the
Security Agreement gives Lender the right to enter the premises and take
possession of the collateral.
(Agreement, p. 7).
4. The parties also entered into a Lease
Agreement on February 1, 2004, for the premises at 7170 Steubenville Pike, the
DiNardos as “Landlord,” and Ms. Koontz as “Tenant.” The term was for five years, with rental payments due
monthly. In the event of default by
Tenant, the Lease gives Landlord the right to re-enter and take possession of
the premises. (Lease Agreement attached
to Koontz original submission).
5.
On February 6, 2004, the parties executed an Addendum to the Asset
Purchase Agreement. Part of the Addendum
was that Charlotte DiNardo would continue to work part-time in the business for
one year, with additional work in the second year at Purchaser’s option. Mrs. DiNardo’s role, in part, was to train
Purchaser and her employees. (Addendum
attached to Koontz original submission).
6. On November 29, 2004, the DiNardos alleged
that Ms. Koontz was in default on the purchase agreement and the DiNardos re-took
possession of the business premises at 7170 Steubenville Pike.[2] Since that date, the DiNardos have had
exclusive possession of the premises and have continued to operate the
business. Also on November 29, 2004,
Ms. Koontz submitted a change-of-address form to the Oakdale Post Office,
directing that mail addressed to “Hair Loss Clinic” and “Hair Clinic” at 7170
Steubenville Pike, be forwarded to her at 608 Blueberry Lane, Monroeville, PA
15146. This change of address was
honored by the post office until February 18, 2005, when Mr. DiNardo complained
and this mail dispute arose. (Dornish
statement; Law Department forwarding letter).
DECISION
Mr. DiNardo’s claim to
the mail is that Ms. Koontz defaulted on the loan and he rightfully took back
the premises in accordance with the Loan and Security Agreement, and that he is
now operating the business. Ms.
Koontz’s claim is that she is still the lawful owner of the business, and that
the DiNardo’s are in default for various reasons, including failure to provide the
required training as required by the February 6, 2004 Addendum.
One of the principles
governing resolution of mail disputes is that mail should be delivered as
intended by the senders. In this case
there is no direct evidence of any sender’s intent, but the fact that the
DiNardos have been operating the business at 7170 Steubenville Pike since
November 29, 2004 makes it likely that current senders of mail would intend for
them to receive it.
Further, in her reply
to Mr. Dornish’s statement, Ms. Koontz does not dispute his assertion that she
defaulted on the loan. Her reply is in
the nature of a counterclaim against the DiNardos. The fact that the DiNardos are actually running the business,
plus the fact that it appears that they acted in accordance with the Loan and
Security Agreement, make Mr. DiNardo’s claim to the disputed mail more
persuasive.
This decision deals
only with delivery of the mail. It does
not attempt to resolve any underlying disputes between the parties. If Mr. DiNardo receives mail that is
intended for Ms. Koontz, it is his responsibility to forward that mail. It is not clear whether there is any pending
legal action over the competing default claims, but 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 Oakdale, Pennsylvania Postmaster
that the disputed mail should be delivered as directed by Charles DiNardo.
Bruce
R. Houston
Chief
Administrative Law Judge