In the Matter of a                          )
Mail Dispute Between:                 )
                                                     )
                                                     )
RICHARD M. BRENNER and         )
MARK A. DIENSTAG                    )
                                                     )
and                                               )
                                                     )
B. J. LAYNE                                 )                       P.S. Docket No. MD-9

APPEARANCE FOR B. J. LAYNE: Phillip M. Gerson, Esq. Suite 1310-Miami Center 100 Chopin Plaza Miami, FL 33131-2306

APPEARANCE FOR RICHARD BRENNER Richard P. Weil, Esq. and MARK DIENSTAG: Hornsby & Whisenand 1110 Brickell, 9th Floor Miami, FL 33131-3196

INITIAL DECISION

This mail dispute matter has been docketed pursuant to Domestic Mail Manual 153.72 which requires regional counsel to forward certain unresolved mail disputes to this department for decision. The mail in dispute is presently being held by the manager, Flagler Station, Miami, Florida, pending final resolution of the matter.

The parties have filed written submittals in accordance with 965.5 of the rules. Neither party has filed comments permitted under 965.6.

FINDINGS OF FACT

1. The disputants were partners in the law partnership of Layne, Brenner & Deinstag under a partnership agreement (hereinafter the agreement) executed on May 2, l985, by disputants Layne and Brenner, as modified by an agreement executed January 1, l986, admitting disputant Dienstag as a new partner.

2. The offices of the partnership were at 21 Southeast First Avenue, 8th Floor, Miami, FLorida 33131 and partnership mail was received at that address.

3. Under paragraph 5.5 of the agreement disputant Layne was designated the managing partner with enumerated duties. Under the modification agreement disputants Layne, Brenner and Dienstag had, respectively, 60%, 20% and 20% interest and voting rights in the partnership.

4. Under Article XVI of the agreement, the partners agreed to submit to binding arbitration any dispute with regard to the rights or obligations of the partnership or any of the partners.

5. By letter dated December 13, l987, disputants Brenner and Dienstag notified disputant Layne that, for reasons stated therein, he had been removed as managing partner pursuant to the terms of the agreement and that they had initiated binding arbitration on an expedited basis as provided for in the agreement.

6. On or about December 15, l987, this mail dispute was generated when (a) disputant Layne directed the post office to deliver to P. O. Box 016937 all mail addressed to Layne, Brenner & Dienstag at 21 SE 1st Ave., Miami, FL 33131 and (b) on December 16, l987, disputant Brenner, purporting to act for the partnership, wrote the post office demanding that all mail for the law firm of Layne, Brenner & Dienstag and individuals Richard M. Brenner, Mark A. Dienstag, Elizabeth Rickenbacker and Jay Levenstein, 21 Southeast First Avenue, Miami, FL 33131 be delivered to Suite 900 at that address. Suite 900 is the location to which disputants Brenner and Dienstag had moved the bulk of the partnership files and records on or about December 12, l987.

7. On December 23, l987, Circuit Court Judge David L. Tobin granted B. J. Layne's motion for entry of temporary injunction directing Brenner and Dienstag to return all of the partnership property to the 8th Floor offices, and appointing a temporary receiver to ensure an orderly process until the conclusion of arbitration proceedings. The temporary injunction was stayed pending appeal to the District Court of Appeal of Florida, Third District, which on January 12, l988, affirmed the trial court's order and stated that the trial court was correct in enforcing the arbitration provisions of the partnership agreement. On return of the parties to the Circuit Court for the purpose of setting a bond to be posted by B. J. Layne, Judge Tobin dissolved the temporary injunction based on a contact made by Layne with the temporary receiver which Judge Tobin found to be in derogation of the conditions of the injunction. Judge Tobin's ruling restored the parties to their positions prior to the injunction.

8. The parties are in expedited arbitration under the partner- ship agreement. Presumably the matter of mail deliveries should be and will be resolved in that proceeding.

CONCLUSIONS OF LAW

With the parties engaged in binding arbitration which should resolve this matter, it would be inappropriate for the Postal Service to assume to decide the rights of the parties to the disputed mail.

In order to allow time for completion of arbitration, all mail addressed to the law firm of Layne, Brenner & Dienstag should be detained for 30 days from the date of the order of the Judicial Officer. If at the end of 30 days the parties have not advised the postmaster of resolution of the dispute in arbitration or otherwise, the mail may be considered undeliverable and returned to sender.

Quentin E. Grant
Chief Administrative Law Judge

ORDER

All mail addressed to the law firm of Layne, Brenner & Dienstag at 21 Southeast First Avenue, Miami, FL 33131 shall be detained for 30 days from the date of this order while the parties are engaged in arbitration. If at the end of 30 days the postmaster has not been advised of resolution of the dispute in arbitration or otherwise, the postmaster will treat the mail as undeliverable and it will be returned to senders.

James A. Cohen Judicial Officer