In the Matter of a Mail                                             )
Dispute Between:                                                  )
                                                                               )
JOHN C. BANGHART                                             )
                                                                               )
            and                                                             )
                                                                               )
C. C. WILLIAMS                                                      )  P.S. Docket No. MD-62

Thompson, Joan B., Administrative Judge

APPEARANCE FOR JOHN C. BANGHART:
John C. Banghart,
2258 S.E. 17th Street,
Ft. Lauderdale, FL 33316-3106

APPEARANCE FOR C. C. WILLIAMS:
C. C. Williams,
4371 N.W. 19th Avenue,
Pompano Beach, FL 33064-8705

INITIAL DECISION

The Postal Service’s Office of Field Legal Services, Memphis, Tennessee, transmitted this matter to this office for resolution pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965. The mail dispute concerns the delivery of mail addressed to Acme Plastics. The findings are based on documents attached to the transmittal letter (including a letter dated May 16, 1989, to the Postmaster from disputant Banghart) and on the sworn statement and exhibits filed by disputant Williams.

FINDINGS OF FACT

1. Disputant Banghart has not filed a submittal or any comments on disputant Williams’s submittal within the times prescribed in 39 C.F.R. § 965.5 and 965.6.

2. In January 1986 disputant C. C. Williams and others sold Acme Plastics, Inc., to E-Grafix, Inc., disputant John C. Banghart, president. The sale included the name “Acme Plastics” and certain other assets of the company and was subject to a Security Agreement.

3. Pursuant to the Agreement, the sellers instituted an arbitration proceeding when the purchaser defaulted on terms of the Agreement. In June 1988 an arbitrator awarded $295,614.31 to Acme Products, Inc., and Mr. Williams (who is the president of that company) from E-Grafix, Inc., and Mr. Banghart.

4. Thereafter, on November 1, 1988, Mr. Banghart as president of E-Grafix, Inc., signed a bill of sale transferring tangible assets of Acme Plastics, Inc., to Acme Products, Inc. Subsequently, Mr. Banghart as president of E-Grafix and Mr. Williams as president of Acme Products, Inc., signed an Agreement dated December 1, 1988. The Agreement provided in part:

“ACME PRODUCTS INC. is hereby authorized to recover possession of, and to do business under the name of ACME PLASTICS INC (DBA), together with exclusive rights to the ‘Customer List’ and all receivables and assets attached thereto, on which the IRS does not have a lien.

It is further agreed that ACME PRODUCTS INC. will relinquish all of it’s [sic] rights under the Purchase & Sale Agreement dated January 22, 1986 against E-GRAFIX INC.

All assets not heretofore claimed under separate actions are to remain the property of ACME PRODUCTS INC. . . .”

5. In his May 16, 1989, letter to the Postmaster, Mr. Banghart indicated he was president of E-Grafix, Inc., Acme Plastics Company, and TEI Grafix Company, and had requested a change of address for those companies in December 1988 from 4371 NW 19th Avenue, Pompano Beach, FL, to 2258 SE 17th Street, Ft. Lauderdale, FL 33316. Some mail addressed to Acme Plastics was forwarded in accordance with that request.

6. In the May letter, Mr. Banghart advised that the Internal Revenue Service (IRS) has a levy on “all the assets” of those companies, and asserted that diverting mail which may contain cash receipts for his companies would be subverting IRS’s lien and levy.

He also asserted that the Postal Service will be held responsible for loss of any assets sent through the mail which are diverted to Mr. Williams.

7. However, Mr. Williams asserts that the IRS has acknowledged the prior lien of Acme Products to the assets which had originally been sold in 1986. He also asserts that Mr. Banghart illegally endorsed checks to IRS which belonged to Acme Products when mail was forwarded to Mr. Banghart in accordance with the change of address request.

8. When Mr. Williams discovered that some payments by customers of Acme Products had been endorsed to IRS, he discussed the matter with local postal officials. As a result, on May 26, 1989, the Postmaster, Pompano Beach, FL 33060-9998, advised Mr. Williams and Mr. Banghart that all mail addressed to Acme Plastics will be held at the post office until a decision is made in this matter.

9. Mr. Williams requests: (1) a determination that Acme Products, Inc., is the legal owner of the name “Acme Plastics;” (2) delivery of the mail addressed in that name to the address of Acme Products; and (3) establishment of “a method for recovery of the monies that were illegally diverted by Mr. Banghart through the mishandled mail delivery.”

CONCLUSIONS OF LAW

1. Mr. Banghart is in default as he failed to file a submittal as required by 39 C.F.R. § 965.5. See 39 C.F.R. § 965.7.

2. In view of the Agreement of the disputants set forth in Finding 4 that Acme Products, Inc., is entitled “to recover possession of, and to do business under the name of ACME PLASTICS INC (DBA),” Acme Products, Inc., is entitled to delivery of mail addressed to Acme Plastics. Therefore, the attached mail delivery instruction should be issued directing delivery of mail addressed to Acme Plastics to Acme Products, Inc., at 4371 N.W. 19th Avenue, Pompano Beach, FL 33064-8705, or as otherwise directed by its president, C. C. Williams.

3. The determination in this mail dispute proceeding brought under 39 C.F.R. Part 965 is only for the purpose of enabling the Postal Service to carry out its responsibilities to deliver the mail. Ownership of the mail or other legal rights between the parties or others is not determined. Therefore, it will be the responsibility of Acme Products, Inc., to determine if the delivered mail and its contents rightfully belongs to it, to IRS, or some other entity, and to take appropriate action.

4. There is no authority in 39 C.F.R. Part 965 for the presiding officer to take the action requested by Mr. Williams pertaining to recovery of money which he alleges was illegally diverted by Mr. Banghart through “mishandled mail delivery.” See Finding 9. Therefore, Mr. Williams’s request is denied.