In the Matter of a Mail Dispute Between:

CELIA SCHMIDT

and

RICHARD C. KENYON

P.S. Docket No. MD-44

Grant, Quentin E., Chief Administrative Law Judge

APPEARANCE FOR CELIA SCHMIDT: Pro Se

APPEARANCE FOR RICHARD C. KENYON: Pro Se

INITIAL DECISION

The parties claim the right to delivery of mail addressed to PTA Travel, 7252 West Oakland Park Boulevard, Fort Lauderdale, FL 33313. Celia Schmidt made a timely submittal pursuant to § 965.5 of the Rules of Procedure. Richard C. Kenyon's submittal, including comments on the Schmidt submittal, was late but has been given discretionary consideration by the undersigned. Ms. Schmidt's comments on Kenyon's submittal, filed January 26, 1989, have also been considered.

FINDINGS OF FACT

1. Celia Schmidt is president of Professional Travel Associates, Inc. (PTA., Inc.), a Florida corporation. PTA, Inc. operated a travel agency known as PTA Travel at 7252 West Oakland Park Boulevard, Fort Lauderdale, FL 33313.

2. By Agreement to Sell dated September 24, 1988, PTA, Inc. sold to Kenrod's, Inc., 7264 West Oakland Park Boulevard, Fort Lauderdale, FL, "all of the assets and goodwill" of the PTA agency located at 7252 West Oakland Park Boulevard. The president of Kenrod's Inc. is disputant Richard C. Kenyon.

3. The Agreement to Sell described the property and goodwill sold as follows: "a. The business known as PTA, to include all furnishings currently in the Oakland Post Office (see Addendum A), together with its goodwill."

4. The bill of sale and addendum A annexed to the agreement to sell did not list the name PTA Travel among the assets sold. However, a copy of a Uniform Commercial Code (UCC) financing statement has been submitted by disputant Kenyon. It shows Kenrod's, Inc. as the debtor and PTA, Inc. as the secured party. It shows signatures of disputant Kenyon for Kenrod's and disputant Schmidt for PTA, Inc. Item 4 of the statement lists the name "PTA" among the items of property covered. The name "PTA" is also included among the items of collateral in a security agreement (chattel mortgage) given by Kenrod's to PTA, Inc.

CONCLUSIONS OF LAW AND DISCUSSION

1. The purpose of this proceeding is simply to determine which party, under applicable postal laws and regulations, has the right to delivery of the mail addressed to PTA Travel, 7252 West Oakland Park Boulevard, Fort Lauderdale, FL 33313. The determination here is not dispositive of the question of ownership of the mail or entitlement to it.

2. There is ambiguity in the Agreement to Sell as to whether the name PTA Travel was sold to Kenrod's. However, the ambiguity is diminished, and for the purpose of this proceeding resolved, by the UCC financing statement and the chattel mortgage executed in conjunction with the agreement to sell. There is strong indication in these documents, which were apparently accepted by disputant Schmidt, that the name PTA Travel as used by PTA Travel Associates, Inc. at the address in question was sold to Kenrod's under the agreement to sell. Therefore, Mr. Kenyon, as president of Kenrod's, has the right to order the delivery of the disputed mail (DMM § 153.51).

3. Disputant Richard C. Kenyon, as the president of Kenrod's, Inc., may properly receive, or direct the delivery of, all mail addressed to PTA Travel at 7252 West Oakland Park Boulevard, Fort Lauderdale, FL 33313. It is the responsibility of Mr. Kenyon to forward to disputant Schmidt any mail so addressed to which Professional Travel Associates, Inc. is entitled pursuant to the Agreement of Sale, dated September 24, 1988, or for any other reason.