January 20, 2006
In
the Matter of a Mail Dispute
Between
JON
E. WHITLEY
and
JOSEPH
C. TRAPANESE
P.S. Docket No. MD 05-219
APPEARANCE FOR DISPUTANT JON E. WHITLEY:
Jon E. Whitley
APPEARANCE FOR DISPUTANT JOSEPH C. TRAPANESE:
Joseph C. Trapanese
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 Coastal Firearms, at 1161 Highway 41, Mount Pleasant, SC 29466-8602. The Mount Pleasant Postmaster is currently holding the mail.
Both parties filed written statements, along with some supporting documents. Mr. Trapanese filed a letter of rebuttal. The following findings of fact are based on all the material submitted by the parties and the material forwarded by the United States Postal Service Law Department, Eastern Area Office.
FINDINGS OF FACT
1. On or about December 2002, Mr. Trapanese created a business called Smoke & Fire, LLC, obtained a Federal firearms license, and began operating under the name Coastal Firearms at 1161 Highway 41, Mount Pleasant, South Carolina. (Trapanese statement; Whitley statement).
2. On March 1, 2004, Mr. Trapanese, as lessor, signed a lease agreement with Mr. Whitley (J.W., Inc., d/b/a Coastal Firearms), as lessee, for the premises at 1161 Highway 41, Mount Pleasant, South Carolina. The lease stated that the lessee would use the premises for a retail gun shop. (Trapanese statement; Whitley statement; lease attached to Whitley statement and to Law Department forwarding letter).
3. From March 1, 2004 to May 2005, Mr. Whitley operated a firearms business known as Coastal Firearms at 1161 Highway 41 in Mount Pleasant. In May 2005, he obtained another building at 1161 Cainhoy Road, Wando, South Carolina and moved his business to that location. He also submitted a Mail Forwarding Change of Address Order, PS Form 3575, to the Mount Pleasant Post Office, directing that mail addressed to Coastal Firearms at 1161 Highway 41 be forwarded to the new address. (Trapanese statement; Whitley statement; Law Department forwarding letter).
4. Sometime thereafter, Mr. Trapanese moved back into the premises at 1161 Highway 41, renewed his Federal firearms license and began operating again as Coastal Firearms. He protested the forwarding of mail to Mr. Whitley’s new address and this mail dispute arose in early November 2005. (Whitley statement; Law Department forwarding letter, and attached documents).
DECISION
Mr. Trapanese argues that he is still the owner of Smoke & Fire, LLC, d/b/a Coastal Firearms, and that the mail addressed to Coastal Firearms at 1161 Highway 41, therefore, belongs to him. He asserts that when Mr. Whitley began operating the business in March 2004, he was doing so under Mr. Trapanese’s business name and license while waiting for his own Federal firearms license to be approved. He denies Mr. Whitley’s assertion that he (Trapanese) was going out of business when the lease agreement was entered into.
Mr. Whitley argues that he entered into the lease agreement and took over the business known as Coastal Firearms because Mr. Trapanese and his associates were going out of business. He contends that part of the agreement was that he would continue to use the name Coastal Firearms and the same telephone number because they were listed in the telephone book.
A general principle in resolving mail disputes is that mail should be delivered as intended by the senders. In this case it is likely that some of the mail being held is intended for each of the disputants. Mr. Whitley operated a business under the name Coastal Firearms at the disputed address for well over a year, and continues to operate it now at a new address. Although it does not appear that Mr. Trapanese continued to operate a firearms business immediately after leasing the property at 1161 Highway 41 to Mr. Whitley, he did operate Coastal Firearms there for well over a year before March 2004 and resumed doing so sometime between May and November 2005.
There are no documents suggesting that Mr. Whitley purchased Mr. Trapanese’s business or obtained an exclusive right to use the name Coastal Firearms as part of the lease agreement. It appears that the businesses operated by the two disputants are two separate and distinct businesses.
In cases where two people are operating businesses under the same or similar names, and the intent of the senders cannot clearly be determined, it has been our practice to award the disputed mail to the person who first established use of the business name. Stricklin/Moody, P. S. Docket No. MD 98-248 (I.D. July 15, 1998; Kelley/Pylant, P. S. Docket No. MD-208 (I.D. February 1, 1994); Keck/Moroni, P. S. Docket No. MD-95 (I.D. August 31, 1990). In this case, that is Mr. Trapanese.
Further, the apparent chronology here makes
it likely that most of the held mail is intended for Mr. Trapanese. Based on an email from the postmaster to the
law department, dated November 9, 2005, mail addressed to Coastal Firearms at 1161
Highway 41 had been forwarded to Mr. Whitley for several months before this
mail dispute arose. Although it is not
clear exactly when Mr. Trapanese re-started his Coastal Firearms business at 1161 Highway 41, by now it is likely
that most senders of mail to that address probably intend for him to receive
it.
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 Mr. Trapanese receives mail that is intended for Mr. Whitely, it is
his obligation 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 Mount Pleasant, South Carolina Postmaster that the disputed mail should
be delivered as directed by Joseph C. Trapanese.
Bruce R.
Chief
Administrative Law Judge