In the Matter of a Mail Dispute:

DAVID HECKMAN and ALI ARKAN and SYLVIA HILBERT

P.S. Docket No. MD-103

Mason, Randolph D., Acministrative Law Judge

APPEARANCE FOR MR. ARKIN AND MS. HILBERT: John R. K. Solt, Esq.,
1425 Hamilton Street, P. O. Box 789, Allentown, PA 18105-0789

INITIAL DECISION

This mail dispute proceeding was docketed under Domestic Mail Manual § 153.72, which requires Regional Counsel to forward certain unresolved mail disputes to this Department for decision. Only disputants Arkan and Hilbert filed a written submittal under 39 C.F.R. § 965.5. The dispute concerns delivery of mail addressed to Rainbow Landscaping and Excavation or Heckman's Concrete, P. O. Box 190, Catasauqua, Pennsylvania 18032-0190. The following findings of fact and conclusions of law are based upon the submittal and exhibits attached thereto:

FINDINGS OF FACT

1. Rainbow Landscaping and Excavation was, at all times relevant herein, a de facto Pennsylvania corporation with an address at P. O. Box 190, Catasauqua, Lehigh County, Pennsylvania 18032.

2. On or about May 4, 1990, Sylvia Hilbert, Ali Arkan, and David Heckman completed and executed articles of incorporation and other documents for the purpose of forming the above corporation and filed articles with the Pennsylvania Department of State.

3. Disputant Ali Arkan was named President of the corporation; David Heckman was named Vice President; and Sylvia E. Hilbert, Secretary/Treasurer.

4. It was agreed that the corporation would trade as "Heckman's Concrete and Form."

5. Subsequently, the corporation opened a corporate checking account, obtained a loan, and purchased a truck, placing title in the name of Heckman's Concrete and Form. It also entered into a contract to purchase concrete panel forms for $22,216.75.

6. On June 20, 1990, the incorporation papers were returned by the state due to various defects. On August 3, 1990, the papers were resubmitted to the state.

7. Mr. Heckman wrote checks on the corporate checking account until the account was closed in late August of 1990.

8. In August Mr. Heckman also submitted a bid on behalf of the corporation to perform concrete work, and subsequently performed that work for the corporation. The corporation was paid for that work.

9. Rainbow Landscaping and Excavation and Heckman's Concrete has never had any address other than P. O. Box 190, Catasauqua, PA 18032.

10. Mr. Heckman now seeks to have all mail addressed to the corporation at P. O. Box 190, Catasauqua, PA 18032 delivered to his home address. On the other hand, Mr. Arkan and Ms. Hilbert wish to have this mail delivered to the corporate box as addressed.

CONCLUSIONS OF LAW

1. Since Disputant Heckman has failed to file a submittal he is in default and the mail should be delivered in accordance with the instructions of the opposing party. 39 CFR § 965.7.

2. Section 153.51 of the Domestic Mail Manual provides that mail addressed to corporations is delivered as addressed. Where disagreement arises among corporate officers and others connected with the company, the mail is delivered in accordance with the order of the president of the corporation.

3. The record does not reflect whether Pennsylvania ever considered the defects in the articles of incorporation to have been cured. However, it is clear that the parties to this dispute at all times treated the corporation in issue as a viable, legal corporation. Also, they held the firm out to the public as a corporation. Accordingly, it is appropriate to apply the rule of DMM § 153.51 for the purpose of resolving the dispute over delivery of the mail. Thus the mail should be delivered in accordance with the instructions of Disputant Ali Arkan, president of the corporation.

4. Moreover, the same result would obtain even if it were clear that the firm was not a valid corporation under Pennsylvania law. DMM § 153.52 provides that mail addressed to unincorporated firms or partnerships is delivered as addressed, as long as the business is being conducted under the same name at the same address, despite some members of the firm breaking off relations. Here, Mr. Arkan, the president of the firm, wishes the mail to be delivered "as addressed" to P. O. Box 190 in Catasauqua, PA, which is the only address ever used by the firm. Therefore, under these circumstances it is also appropriate to deliver the mail to that address.

5. This decision does not resolve questions of ownership of the mail in dispute, but merely determines how it should be delivered. If Mr. Arkan and Ms. Hilbert receive any mail which belongs to Mr. Heckman, they shall assure that such mail is forwarded to Mr. Heckman.

6. The attached mail delivery order should be issued.