In the Matter of a Mail Dispute Between:

SAFEGUARD BUSINESS SYSTEMS, INC.
and
JIM AND CATHY CLEMENT

P.S. Docket No. MD-136

02/07/92

Cohen, James A., Judicial Officer

APPEARANCE FOR DISPUTANT SAFEGUARD BUSINESS SYSTEMS, INC.: Thomas A.
Schneider, Esq., 455 Maryland Drive, Fort Washington, PA 19034-2594

APPEARANCE FOR DISPUTANTS JIM AND CATHY CLEMENT: Dick Harris, Esq.,
Harris and McBeath, P.O. Box 3835, Abilene, TX 79604-3805

POSTAL SERVICE DECISION

Disputant Safeguard Business Systems, Inc. (Safeguard) has filed an appeal from an Initial Decision of an Administrative Law Judge in which it was determined that mail addressed to Safeguard Business Systems or Clement Company Safeguard Business Systems, P.O. Box 6927, Abilene, TX 79608-6927, should be delivered as addressed. In its appeal, Disputant Safeguard does not contend the essential findings and conclusions of the Initial Decision are in error, but requests only that an error regarding the expiration date of its agreement with Disputant Cathy Clement be corrected.

Based on a review of the record, the Judicial Officer has determined to exercise his discretion to review the Initial Decision in accordance with 39 C.F.R. § 965.12.

Background

In the Initial Decision, the Administrative Law Judge correctly found that Disputant Cathy Clement, by agreement dated September 23, 1985, became a distributor for Disputant Safeguard, a business product and service corporation (I.D., Finding of Fact (FOF) #2). On April 1, 1988, with the approval of Safeguard, Disputant Jim Clement became an associate distributor for Safeguard products and services (I.D., FOF #5). The agreement by its terms expired on September 23, 1990. n1 However, the parties continued to operate under the agreement until, by letter dated September 11, 1991, Safeguard terminated its relationship with the Clements (I.D., FOF #7).

n1 The Administrative Law Judge found the agreement expired on September 23, 1985. In accordance with Disputant Safeguard's request on appeal, this date is corrected to September 23, 1990.

For the purpose of receiving mail connected with their Safeguard distributorship, Disputant Cathy Clement on September 4, 1985, filed an application for rental of P.O. Box 6927, Abilene, TX, 79608-6927 (I.D., FOF #3; Post Office Box Rent Register, P.S. Form 1091-A, dated September 4, 1985). The application was filed in the name of, and as agent for, Safeguard Business Systems (Id.). Since filing the application, rental of the box has been paid by Disputant Cathy Clement (I.D., FOF #3). The mail received at the box includes personal mail addressed to Disputants Cathy and Jim Clement, individually, as well as mail addressed to Clement Company Safeguard Business Systems, an assumed business name registered by Cathy Clement in February 1986 (I.D., FOF #4).

Under the terms of the 1985 agreement, Disputant Cathy Clement was granted a non-exclusive license to use the name "Safeguard" (a name registered to Disputant Safeguard) in connection with her representation of Safeguard as its distributor (Safeguard Submittal, Interim Regional Distributor Agreement Between Safeguard Business Systems, Inc. and Cathy Clement, #6). On termination of the agreement, her right to use the name was revoked (Id.).

For the purpose of processing orders for its products, Disputant Safeguard directs its customers to submit orders to its commissioned agents who then forward those orders to Safeguard's plants for acceptance and production (Safeguard Submittal, attachments dated October 25 & December 6, 1991). In connection with orders forwarded by the Clements, a reorder envelope preprinted with the address involved in this dispute, P.O. Box 6927, Abilene, TX, was inserted into each box of merchandise shipped from Disputant Safeguard to customers in the Abilene distribution area (Id.).

The Administrative Law Judge concluded that Disputant Cathy Clement is the "box customer" for P.O. Box 6927 and as such is the only person who can file a change of address for that box (I.D., pp. 4-5). The Administrative Law Judge further concluded that the bulk of the disputed mail is intended for the distributorship formerly run by the Clements, not for Disputant Safeguard, and as the boxholders they are entitled to obtain delivery of mail addressed to Safeguard Business Systems or Clement Company Safeguard Business Systems, P.O. Box 6927, Abilene, TX 79608-6927 (I.D., p. 5).

Discussion

The record establishes the disputed mail should be delivered to Disputant Safeguard. Disputants Cathy and Jim Clement received delivery of mail, addressed to "Safeguard Business Systems" and "Clement Company Safeguard Business Systems," as agents for Disputant Safeguard in connection with the sale of its products and services. On termination of their relationship with Safeguard, the Clements were no longer authorized to use the name "Safeguard" or to receive mail orders directed to that company. See Richard E. Compass, P.S. Docket No. MD-47 at 4-5 (I.D. Mar. 10, 1989).

In addition, the Domestic Mail Manual (DMM) requires that mail addressed to a corporation be delivered as addressed or to its authorized agents. Where a disagreement arises among corporate officers and others connected with the company, as here, the mail is delivered in accordance with the orders of the president of the corporation. DMM § 153.51. See also Ira Hubbard, P.S. Docket No. MD-137 at 4 (I.D. Jan. 10, 1992); J. Stanton Keck, P.S. Docket No. MD-95 at 2-3 (I.D. Aug. 31, 1990).

Moreover where, as here, there is a mail dispute between businesses with the same name, delivery is to be made to the business that is the most likely recipient intended by the sender, which is usually the business operating for the longer time under the common trade name. See Rev. Paul N. Carrithers, P.S. Docket No. MD-119 at 3-4 (P.S.D. Oct. 2, 1991); J. Stanton Keck, P.S. Docket No. MD-95 at 2 (I.D. Aug. 31, 1990); Advanced Telecommunications, Inc., P.S. Docket No. MD-99 at 3 (I.D. Nov. 16, 1990); Jack Malken, P.S. Docket No. MD-16 at 4 (I.D. June 2, 1988). In this case, Safeguard Business Systems, Inc. operated its business and used the trade name "Safeguard" prior to the Safeguard distributorship established by the Clements. Disputants Cathy and Jim Clement, in connection with their representation of Safeguard, used the assumed names "Safeguard Business Systems" and "Clement Company Safeguard Business Systems" with Disputant Safeguard's permission. Since all orders for Safeguard merchandise were submitted to the Clements as agents for Safeguard, it is unlikely that the Clements are the intended recipients of mail directed to either "Safeguard Business Systems" or "Clement Company Safeguard Business Systems." Rather, it is more likely that such mail contains orders for the purchase of Safeguard office products and services, which until recently, were processed through Disputants Cathy and Jim Clement as Safeguard's distributors.

Conclusion

After consideration of the entire record, it is concluded that all mail addressed to Safeguard Business Systems or Clement Company Safeguard Business Systems, P.O. Box 6927, Abilene, TX 79608-6927, which is currently being held or hereafter received, is to be delivered in accordance with the direction of the president of Safeguard Business Systems, Inc. n2 Accordingly, the Initial Decision is reversed.

n2 This decision only determines the right to delivery of the mail in dispute, and not its ownership. In the event Disputant Safeguard receives mail clearly intended for the Clements, it is responsible for assuring that such mail is forwarded to them.