In the Matter of a Mail Dispute Between:

JAMES R. HICKS, SR.
and
EDDIE D. BANKS

P.S. Docket No. MD-110

04/18/91

Grant, Quentin E., Chief Administrative Law Judge

APPEARANCE FOR JAMES R. HICKS, SR.: None.

APPEARANCE FOR EDDIE D. BANKS: None.

INITIAL DECISION

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

Neither party has filed a submittal as required by § 965.5 of the Rules of Practice and as directed in my order dated February 13, 1991. However, on the basis of documents filed by the disputants prior to referral of the dispute to the Judicial Officer and Disputant Hicks' letter dated March 4, 1991, in order to resolve the dispute the following findings and conclusions are made:

FINDINGS OF FACT

1. The disputants are Eddie D. Banks, 1856 Belgrade Ave., A1, Charleston, SC 29407-5775 and James R. Hicks, Sr., P. O. Box 30835, Charleston, SC 29417-0835.

2. At some undisclosed time, the disputants formed a business called Hicks and Banks, Inc. doing business at 1856 Belgrade Avenue, Suite A-1, Charleston, SC 29407. There is no evidence by way of certificate of the Secretary of State or otherwise of the formal incorporation of the business. There are no minutes of a meeting of the board of directors at which officers were elected but it appears that disputant Hicks was president of the business.

The mailing address of the business was P. O. Box 30835, Charleston, SC 29407.

3. In a letter dated April 20, 1990, from Mr. Hicks to a Mr. Michael Drose (not otherwise identified) on the letterhead of Hicks & Banks, Inc., Mr. Hicks stated that he was resigning that date as president and secretary of the corporation. The record fails to disclose the election of a successor president.

4. On September 24, 1990, disputant Banks filed with the post office a change of address order directing that mail addressed to Hicks & Banks, Inc. at P. O. Box 30835 be delivered to 1856 Belgrade Avenue, Suite A-1, in Charleston.

5. This mail dispute commenced on October 2, 1990, with the filing by disputant Hicks of an order changing the address for delivery of mail addressed to Hicks & Banks, Inc. from 1856 Belgrade Avenue back to P. O. Box 30835.

6. In a letter dated October 12, 1990, from disputant Hicks to the station manager, Richard W. Bates, Mr. Hicks asserted that there was no longer a business called Hicks and Banks at 1856 Belgrade Avenue. To support that assertion, Mr. Hicks attached a copy of a motion filed in the United States Bankruptcy Court for the District of South Carolina. I find that this document, in itself, proves nothing relative to the present existence of the corporation.

7. The file contains a letter to the station manager dated October 18, 1990, from a Charleston attorney stating that Hicks and Banks, Inc. is a corporation still in existence in South Carolina, no dissolution having been filed with the Secretary of State. The statement is not in the form of a certificate or affidavit. I find that it has little probative value.

8. In his October 12 and December 30 letters to the station manager, disputant Hicks stated that he is concerned only with receiving mail addressed to "J. R. Hicks - Hicks & Banks, Inc." In the December 30 letter, he expressed his willingness that Mr. Banks receive mail addressed to Mr. Banks at Hicks & Banks, Inc.

CONCLUSIONS OF LAW

Domestic Mail Manual 153.51 provides that where disagreement as to delivery of mail arises among corporate officers or others connected with the company it shall be delivered in accordance with the order of the president of the corporation. On the skimpy record in this dispute it appears that Hicks and Banks is no longer a going business. Furthermore, if the corporation still exists, it cannot be found that either disputant is president thereof and, therefore, has the right to order delivery of mail addressed only to the corporation. Under these circumstances, mail addressed to Hicks & Banks, Inc. (alone) either at 1856 Belgrade Avenue or at P. O. Box 30835 should be returned to senders. On the other hand, it appears that each disputant, without objection by the other, wishes to receive mail addressed to him or to him and the corporation. The record does not disclose that anyone other than the disputants has any interest in Hicks & Banks. Therefore, it is appropriate that mail addressed to disputant Hicks at Hicks & Banks either at 1856 Belgrade Avenue or P. O. Box 30385 be delivered as ordered by him and that mail addressed to disputant Banks at Hicks & Banks at either address be delivered as ordered by him.

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