In the Matter of a Mail Dispute Between:

JOHN EDWARD PORTER
and
JOHN EDMOND PORTER

P.S. Docket No. MD-73

Grant, Quentin E., Chief Administrative Law Judge

APPEARANCE FOR JOHN EDWARD PORTER: John Edward Porter, Pro
Se, 7614 W. Piute, Glendale, AZ 85308-6091

APPEARANCE FOR JOHN EDMOND PORTER: Martin F. Kiel, Esq., Kiel
and Kiel, P.C., 7112 N. 55th Avenue, Glendale, AZ 85301-2502

INITIAL DECISION

This mail dispute has been forwarded for resolution pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965. The parties dispute the right to delivery of mail addressed to Glendale Realty, Inc., or Glendale Realty at 7031 North 56th Avenue, Suite 4, Glendale, AZ 85301.

The parties have made timely submittals pursuant to § 965.5 of the Rules of Practice. Only John Edmond Porter has filed comments permitted by the rules.

FINDINGS OF FACT

1. The disputants are father (John Edmond Porter) and son (John Edward Porter).

2. From 1975 to July 2, 1989, the father was sole shareholder of a real estate brokerage firm, Glendale Realty, Inc., an Arizona corporation, having as its address 7031 North 56th Avenue, Suite 4, Glendale, AZ 85301, premises owned by the father since 1984.

3. In December 1988, the son moved from California to Arizona, where he had obtained a real estate license, and went to work for the firm.

4. On or about July 1, 1989, the corporation ceased to do business and the father, for valuable consideration, transferred to the son all rights to the name Glendale Realty, Inc. or any name approximately the same. Simultaneously, father and son jointly notified the Commissioner, Department of Real Estate, State of Arizona, that the legal status of Glendale Realty, Inc. was changed from a corporation to a sole proprietorship belonging solely to the son. At the same time the father resigned his position as designated broker of the firm and the son was made the new designated broker.

5. On July 10, 1989, the son registered with the State of Arizona the trade name Glendale Realty, giving as his business address 7031 North 56th Avenue, Suite 4, Glendale, AZ 85301.

6. On or about September 14, 1989, the son filed with the postmaster at Glendale a change of address form for mail addressed to Glendale Realty (Inc.) at 7031 North 56th Avenue, Suite 4, Glendale, AZ 85301. n1

n1 The file does not contain a copy of this form.

7. On September 15, 1989, the son ceased doing business as Glendale Realty and became employed by John E. Foltz, designated broker for Realty Executives. The father asserts that cessation of the business by the son violated an agreement by the son that he would continue the business. There is no documentary evidence of such an agreement in the submittals.

8. The father, on learning of the son's change of address action, notified the Glendale postmaster that mail addressed to the 7031 North 56th Avenue address should be delivered as addressed because the father was still doing business and "wrapping up the business of Glendale Realty, Inc." at that address. The son insisted to the postmaster that the transactions of July 1989, gave him the exclusive right to direct delivery of the mail in question.

DECISION

The father says that when he transferred Glendale Realty, Inc. to his son in July 1989, they agreed that the son would continue the business and that the son breached this agreement in September 1989, when he closed it. The father claims the superior right to delivery of the disputed mail because of this breach, because Glendale Realty no longer exists, and because he is the only person who has occasion to receive mail addressed to it since Glendale Realty advertisements, for which he has paid, still appear in a number of realtor related publications. The father also argues that his continued ownership of the premises at 7031 North 56th Avenue should work in his favor.

The father's arguments are not persuasive. When he ceased doing business as Glendale Realty, Inc., transferred to the son all rights to the corporate name or any other name approximately the same, agreed that the status of the corporation was changed to a sole proprietorship solely owned by the son, and joined in naming him the designated broker of the sole proprietorship, absent any agreement to the contrary he effectively transferred to the son the right to direct delivery of the disputed mail. A breach by the son of an agreement to continue the business, if there was such an agreement, did not affect his right to receive the mail in dispute.

Accordingly, all mail addressed to Glendale Realty, Inc., or Glendale Realty at 7031 North 56th Avenue, Suite 4, Glendale, AZ 85301 should be delivered in accordance with the direction of the son, John Edward Porter. Mail addressed to the father at the 7031 North 56th Avenue address should, of course, be delivered to him.

The father argues that the son's submittal in this proceeding should be disregarded because it is not sworn as required by the rules. This argument might be persuasive if the father's sworn submittal controverted the son's, but it does not. The son's submittal consists simply of documents evidencing the transactions of July 1989, which the father does not dispute (FOF 4 & 5, above).