June 29, 2005
In the Matter of a Mail Dispute Between
NOËL A. BASSETT
and
JOE LIU AND KAREN HUANG-LIU
P.S. Docket No. MD 05-71
APPEARANCE FOR DISPUTANT NOËL A. BASSETT:
Noël A. Bassett
785 Route 28, #2
South Yarmouth, MA 02664-7200
APPEARANCE FOR DISPUTANTS JOE LIU AND KAREN HUANG-LIU:
Mark T. Russell, Esq.
2 Main Street, Suite 5
West Harwich, MA 02671-1040
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 Seaview Motel Condominium Trustees, at 785 Route 28, South Yarmouth, MA 02664. The South Yarmouth Postmaster is currently holding the mail.
Neither party filed a sworn written statement, as required by the Rules of Practice, 39 C.F.R. §965.5, nor any other information beyond what had been submitted earlier to the postmaster. The following findings of fact are based on all the material forwarded by the United States Postal Service Law Department, Philadelphia office.
FINDINGS OF FACT
1. The Seaview Motel Condominium Trust was created on September 8, 1981. The initial Trustees were Philip Haft and Rose R. Haft, who were to hold office for two years or until all units were conveyed. Thereafter, there was to be a Board of Trustees of at least two but not more than five, to be elected by majority vote of the unit owners. (Declaration of Trust and By-Laws).
2. From 1981 until December 20, 2004, the only document in the file to show when any person other than the Hafts was chosen to be a Trustee is an Appointment Certificate naming Ms. Bassett as a Trustee on July 26, 2001. Apparently, it is not disputed that she held that position at least until December 20, 2004. (Acceptance of Appointment as Trustee; Mark Russell letter to Ms. Bassett, February 5, 2005).
3. On December 20, 2004, Joe and Karen Liu, along with Joseph Brewster, signed a Certificate of Appointment of Successor Trustees, stating that they were elected as Successor Trustees at a meeting of unit owners on December 20, 2004. This Certificate was signed before a Notary Public.
4. It is unclear exactly what precipitated the mail dispute, but at some time both parties began claiming the mail addressed to Seaview Motel Condominium Trustees. (Law Department forwarding letter).
5. 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.[1]
DECISION
In this case, a Trustee of the Seaview Motel Condominium Trust is an “equivalent official,” under the provision quoted above. The Lius claim they are now Trustees, having been elected to replace Ms. Bassett and others on December 20, 2004. Ms. Bassett claims she is still a Trustee because the December 20 meeting and election were invalid.
Neither party has submitted sufficient facts and documents to establish whether the December 20, 2004 meeting was called and conducted in accordance with the By-Laws of the Trust. The burden here is on the party contending that new officers or Trustees have been elected to replace those previously in office. Because the Lius have failed to carry that burden, we revert to the status quo and assume that Ms. Bassett still holds her office as a Trustee. As such, she is entitled to direct delivery of the disputed mail.
This decision deals only with delivery of the mail. It does not attempt to resolve any underlying 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 South Yarmouth, Massachusetts Postmaster that the disputed mail should be delivered as directed by Noël A. Bassett.
Bruce R. Houston
Chief Administrative Law Judge