In the Matter of a Mail Dispute Between:

GEORGE TUCKER
and
AARON ZEMLER

P.S. Docket no. MD-109

3/7/91

Grant, Quentin E., Chief Administrative Law Judge

APPEARANCE FOR GEORGE TUCKER: Wendell R. Goodbee, Esq.,
Goodbee & Goodbee, 318 South 8th Street,
Colorado Springs, CO 30905-1804

APPEARANCE FOR AARON ZEMLER: Aaron Zemler,
904 Shrider Road
Colorado Springs, CO 80920-3116

INITIAL DECISION

The Office of Field Legal Services, United States Postal Service, Chicago, IL, has forwarded this mail dispute for resolution pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965.

Both parties have filed submittals and comments pursuant to the Rules of Practice. Mr. Zemler's submittal was initially unsworn but this defect was cured on the filing of his sworn declaration relating to all previous filings dated February 19, 1991. The following findings of facts are based on the relevant portions of the submittals, comments, and exhibits annexed thereto.

FINDINGS OF FACT

1. The disputants are George Tucker, P. O. Box 7146, Colorado Springs, CO 80933-7146 and Aaron Zemler, 904 Shrider Rd., Colorado Springs, CO 80920-3116.

2. The mail in dispute is addressed to Water Crystals, Inc., 2929 N. Prospect #104, Colorado Springs, CO 80907 and Water Crystals USA, Inc. at the same street address but at Suite #100.

3. Water Crystals USA, Inc. is a Colorado Corporation formed on or about November 6, 1990, by Aaron Zemler's son, Danny Zemler. Disputant Tucker has no relationship to this corporation as an officer, director, or shareholder. Danny Zemler is president of this corporation.

4. Water Crystals, Inc. (hereinafter "Corporation") is a Colorado corporation founded on or about May 23, 1990, by Disputant Tucker. The Articles of Incorporation thereof name Mr. Tucker, Aaron N. Zemler, and Danny J. Zemler as the initial directors, to hold office until the first annual meeting of stockholders or until the election of their successors.

5. Disputant Zemler claim to have been the initial president of Corporation but there is no evidence of his election as such by way of board of director's resolution, minutes or otherwise.

6. Disputant Zemler was not and is not a shareholder of Corporation although he claims to have had share subscription rights which were breached.

7. According to disputant Tucker's sworn statement of January 17, 1991, he and his wife are the sole shareholders of Corporation. This is not disputed by Mr. Zemler. Tucker's claim as to share ownership is supported by a copy of Articles of Amendment of the Articles of Incorporation dated October 11, 1990, which also shows George T. Tucker, Erma K. Tucker, and Kevin L. Tucker to be the only directors of Corporation.

8. The record shows that at a special meeting of the shareholders on October 11, 1990, the Tuckers were elected directors and that at a meeting of this new Board of Directors on the same date they were appointed the only officers.

9. The record is not clear as to the exact date this dispute arose but it appears to have arisen in the course of disputes between Mr. Tucker and the Zemlers over their respective rights and interests in Corporation as a result of which Mr. Tucker directed the Postmaster at Colorado Springs to change the address for delivery of Corporation's mail from 2929 N. Prospect #104 to P. O. Box 7146, both in Colorado Springs, CO and Mr. Zemler opposed such change. At a later date, following the creation by the Zemlers of the new corporation, Water Crystals USA, Inc., the dispute was expanded when Mr. Tucker directed the Postmaster to deliver that mail addressed to that corporation also to P. O. Box 7146.

DISCUSSION

Much of the documentation and argument submitted by the parties relates to disputes between the parties other than that involving the delivery of mail. These disputes are not within the jurisdiction of the Postal Service which is limited to determining which disputant has the right to direct the delivery of the disputed mail, not the ownership thereof.

CONCLUSIONS OF LAW

1. Section 153.51 of the DMM provides that when a dispute arises between officers or others associated with a corporation over delivery of mail, the mail is delivered in accordance with the direction of the president.

2. Disputant Tucker has no authority to direct the delivery of mail addressed to Water Crystals USA, Inc. because he has no connection with that corporation as president or otherwise.

3. Disputant Zemler's claim to be president of Water Crystals, Inc. is unsupported by anything in the record. Between its incorporation in May 1990 and the meeting of the new board of directors on October 11, 1990, there is no evidence as to appointment of officers or, indeed, that there were any officers.

4. There is nothing in the record to controvert Mr. Tucker's claim that he and his wife are the sole shareholders of Corporation and were such on October 11, 1990, when, at a special meeting of shareholders, they elected a new board of directors which, in turn, appointed them the only officers. The record does not show which Tucker is president.

5. Either as president of Corporation, or acting, presumably, with the authorization of the president, disputant Tucker has the right to direct the delivery of mail addressed to Water Crystals, Inc. at 2929 N. Prospect #104, Colorado Springs, CO 80907.

6. As mentioned above, this decision determines only the right to delivery of the disputed mail. It is not intended to, and cannot, determine the ownership of the disputed mail. Therefore, if either disputant receives mail that belongs to the other, he will be responsible for assuring that such mail is forwarded to the other.

7. The attached mail delivery order should be issued.