In the Matter of a Mail Dispute Between:

JOHNNIE W. DILLEHAY

and

CHARLES W. D'ARY

P.S. Docket No. MD-37

Thompson, Joan B.; Administrative Judge

INITIAL DECISION

This mail dispute has been forwarded from the Office of Field Legal Services, Central Regional Office, United States Postal Service, for resolution pursuant to Domestic Mail Manual (DMM) 153.72 and 39 C.F.R. Part 965. The Findings have been made from the submissions filed by both Disputants and from the report of the Postmaster, Swartz Creek, MI 48473-9998. The dispute concerns which party is entitled to mail addressed to the following named businesses (or spelling variations thereof): P & M Co. (Corp., Enterprises, Incorporation, or Limited), Mike's Sewer Cleaning, Mike's Plumbing & Heating, Johnnie's Sewer Cleaning, Johnnie's Furnace Cleaning & Repair, Johnnie's Plumbing & Heating, Johnnie's Furnace Clean-up & Repair.

FINDINGS OF FACT

1. In November 1986 Disputant Dillehay sold two businesses he was operating under the names P & M Co. and Mike's Sewer Cleaning to Disputant D'Ary and his wife. Monthly payments were to be paid for five years. Disputant Dillehay reserved an option to buy back the businesses within one year.

2. On November 19, 1986, and December 17, 1986, respectively, Disputant D'Ary filed certificates with the State of Michigan for conducting businesses under the following assumed names: Mikes Sewer Cleaning (at 360 Lincoln Ave., Mt. Morris, MI 48458), and P & M Debrising & Boarding (at the Lincoln Ave. address and P.O. Box 510, Mt. Morris, MI 48458).

3. In November 1986 Disputant Dillehay transferred the business name of Mike's Sewer Cleaners (or Cleaning) on county records and a checking account in that name to Disputant D'Ary. However, he never transferred the name or checking account for P & M Company to Disputant D'Ary and he had mail delivered to a third person. Disputant Dillehay continued a checking account under the name P and M Company (with his taxpayer identification number) at 9330 Woodside Tr., Swartz Creek, MI 48473. Disputant D'Ary also used a checking account at the same bank, apparently under the P & M Company name, but with a different address.

4. According to Disputant D'Ary, certain property and other assets of the businesses were not transferred to him as agreed; therefore, he paid only partial payments from December 1986 through April 1987. In September 1987 Disputant Dillehay reclaimed the businesses because he had not been paid in accordance with their contract.

5. Thereafter, on advice of his attorney, Disputant Dillehay changed the name of his sewer business to use his first name. Copies of two schedule C's of his federal income tax return for 1987 shows he had conducted business under the names of Johnnie's Sewer Cleaners and P & M Co. during that year. Copies of order forms used by him in 1988 show he operated a business as "Johnnie's Sewer Cleaners (formerly) Mike's Plumbing & Heating" at 9330 Woodside Tr., Swartz Creek, MI 48473.

6. On November 18, 1987, Disputant D'Ary filed changes of address orders with the postmaster to have mail addressed to P & M Company and Mike's Sewer Cleaning forwarded from 9330 Woodside Tr., Swartz Creek, MI 48473, to P.O. Box 519, Mt. Morris, MI 48458-0519.

7. On January 11, 1988, Disputant Dillehay filed a forwarding order change to cancel Disputant D'Ary's forwarding order for mail addressed to P & M Co. and he requested that such mail be delivered as addressed to the Woodside Tr. address in Swartz Creek.

8. Subsequently, on June 18, 1988, Disputant D'Ary again filed change of address orders to have mail in the name of Mike's Sewer Cleaning and P & M Company forwarded to his box in Mt. Morris from the Woodside Tr. address in Swartz Creek. Thereafter, on June 29, 1988, he filed similar change of addresses for businesses under the following names: P & M Corp., P & M Enterprises, P & M Inc., P & M Limited, Johnnie's Furnace Cleaning & Repair, Mike's Plumbing & Heating, Johnnie's Sewer Cleaning, Johnnie's Plumbing & Heating.

9. Disputant D'Ary, as an individual, filed with the State of Michigan in 1988 for certificates to conduct business at 1619 Leith Ave., Flint, MI 48506, under the following assumed names: Johnnies Sewer Cleaners (April 15, 1988), Johnnies Furnace Repairing & Cleaning (May 13, 1988), Mike's Plumbing and Heating (June 29, 1988), Johnnie's Plumbing and Heating (June 29, 1988), Mike's Furnace Cleaning & Repairing (July 14, 1988), Johnnie's Cooling and Air-Conditioning (August 23, 1988), Mike's Cooling and Air-Conditioning (August 23, 1988).

10. On May 20, 1988, Disputant D'Ary, as "C.D.'s P & M Corporation," showing a corporate address of 1619 Leith Ave., Flint, MI 48506, also filed for state certificates to conduct businesses at P.O. Box 519, Mt. Morris, MI 48458, under these assumed names: Johnnies Furnace Repair & Cleaning, Johnnies Sewer Cleaning, P & M Debrising & Boarding, Mike's Furnace Repair & Cleaning, and Mike's Sewer Cleaning.

11. Disputant D'Ary states he purchased a business in the name of Johnnie's Sewer Cleaning from another owner listed by Genesee County. He claims he is responsible under state law for all companies he has legally registered. He asserts that Disputant Dillehay has not registered the name Johnnie's Sewer Cleaners with any state or local Government agency. He further asserts that he has the legal registration for P & M Company and Disputant Dillehay has no right to the name P & M Company (or any variations thereof).

12. Disputant Dillehay claims the right to mail for his businesses, Johnnie's Sewer Cleaning and P & M Company, at 9330 Woodside Tr., Swartz Creek, MI 48473. There is no evidence Disputant D'Ary used that address or had a right to use that address for any of his businesses.

CONCLUSIONS OF LAW

1. Charges of each Disputant against the other for breaches of contract or for other alleged wrongs should be resolved in another, appropriate forum. The determination in this mail dispute is only for the purpose of discharging the Postal Service's delivery of mail responsibilities in the absence of an agreement of the parties or a court order. See DMM 153.71 - 153.73.

2. It is most likely that mail addressed to 9330 Woodside Tr., Swartz Creek, MI 48473, pertained to businesses operated by Disputant Dillehay as he conducted businesses in the names of P & M Company and Johnnie's Sewer Cleaners using that address and Disputant D'Ary has not shown he used that address or had any right to use that address for his businesses. Merely by showing he has filed, as an individual or as an incorporated entity, for certificates from the State of Michigan to conduct businesses under similar assumed names at other addresses does not entitle Disputant D'Ary to have mail addressed to Disputant Dillehay's address and claimed by Disputant Dillehay forwarded to Disputant's D'Ary's address.

3. Also, it is most likely that mail addressed to the assumed names of the businesses registered by Disputant D'Ary at 360 Lincoln Ave., Mt. Morris, MI 48458; or P.O. Box 519, Mt. Morris, MI 48458; or at 1619 Leith Ave., Flint, MI 48506, pertain to businesses operated by Disputant D'Ary, as there is no evidence that Disputant Dillehay has operated businesses from those addresses.

4. Neither Disputant has shown that he, or his business, is entitled to receive mail addressed to an address used by the other party even if the Disputant also claims to be doing business from his own address using the same or a similar assumed name.

5. Change of address orders are to be used when postal customers move or change from one address to another. DMM 159.211. As these circumstances have not been shown, the change of address orders filed by Disputant D'Ary should not be honored. Instead, even if the other Disputant uses the same or a similar business name as the name of the addressee, mail should be delivered to the address used by the sender. Should either Disputant receive mail belonging to the other, he should forward that mail to the other Disputant.

6. The attached mail delivery instruction to the Postmaster should be issued.