In the Matter of a Mail Dispute Between:

F. GEOFFREY TOONDER, M.D.*[1]
and
JOSEPH H. BOYER, M.D.

P. S. Docket No. MD-162

APPEARANCE FOR
F. GEOFFREY TOONDER, M.D.:
F. Geoffrey Toonder, M.D.
1210 S. Cedar Crest Blvd.
Suite 2800
Allentown, PA 18103-6208

APPEARANCE FOR
JOSEPH H. BOYER, M.D.:
Joseph H. Boyer, M.D.
4172 Ravenswood Road
Allentown, PA 18103-9677

INITIAL DECISION

            This mail dispute matter has been docketed pursuant to Domestic Mail Manual §153.72, which requires Regional Counsel to forward certain unresolved mail disputes to this Department for decision.  The mail in dispute, which is addressed to Joseph H. Boyer, M.D., 1210 S. Cedar Crest Blvd., Suite 2800, Allentown, Pennsylvania  18103-6208, is presently being held by the Postmaster, Allentown, Pennsylvania  18101-9998.  Disputant Dr. F. Geoffrey Toonder has filed a written submittal, as required by 39 C.F.R. §965.5, while Disputant Dr. Joseph Boyer has not.  Nor has Dr. Boyer filed any comments addressing Dr. Toonder's submittal, as permitted by 39 C.F.R. §965.6.

FINDINGS OF FACT

            1.         Dr. F. Geoffrey Toonder has practiced cardio-thoracic surgery since 1981 at his office located at 1210 S. Cedar Crest Blvd., Suite 2800, Allentown, Pennsylvania  18103-6208.  Dr. Toonder is affiliated with Lehigh Valley Hospital in Allentown, Pennsylvania.

            2.         On or about May 23, 1992, Dr. Toonder and Dr. Joseph Boyer entered into an oral agreement that Dr. Boyer would join Dr. Toonder in practicing cardio-thoracic surgery at the S. Cedar Crest Blvd. address.

            3.         On July 16, 1992, Dr. Toonder and Dr. Boyer signed an "Interim Agreement" formalizing their working relationship.  The Agreement stated that the parties "have entered into discussions and negotiations relative to the formation of a partnership for the practice of medicine" and that for a period of 90 days the parties would practice medicine at the S. Cedar Crest Blvd. address and would equally divide expenses and income.  During the 90 day period the parties agreed to continue negotiations and discussions relating to the formation of a partnership agreement.  The Interim Agreement could be terminated by either party during its existence upon 15 days written notice.  In the event of such termination a final accounting was to be performed by a designated CPA with all profits of the practice to be split equally.

            4.         On July 21, 1992, the Lehigh Valley Hospital recognized the Disputants' affiliation and granted Dr. Boyer temporary privileges.

            5.         On August 21, 1992, Dr. Toonder advised Dr. Boyer that the Interim Agreement was to be terminated.  Thereafter, Lehigh Valley Hospital withdrew Dr. Boyer's temporary privileges, and Dr. Toonder continued the practice at the S. Cedar Crest Blvd. address.

            6.         By letter dated August 25, 1992, to the Postmaster, Allentown, Pennsylvania, Dr. Boyer requested that all mail addressed to him at 1210 S, Cedar Crest Blvd., Suite 2800, Allentown, Pennsylvania  18103-6208 be forwarded t 4172 Ravenswood Road, Allentown, Pennsylvania  18103-9677.

            7.         In a letter to the Allentown Postmaster, likewise dated August 25, 1992, Dr. Toonder requested that all mail addressed to 1210 S. Cedar Crest Blvd., Suite 2800, Allentown, Pennsylvania  18103-6208 be delivered to that address.

CONCLUSIONS OF LAW

            1.         Disputant Boyer failed to make the submittal required by 39 U.S.C. §965.5 and thus is in default of this proceeding.  39 C.F.R. §965.7.  The default alone is ground for deciding the dispute in favor of Dr. Toonder.

            2.         The July 16, 1992, "Interim Agreement" of the parties did not constitute a partnership agreement, as by its own terms it was a precursor to the possible formation of a partnership in the future.  Thus, the affiliation of the parties was no more than a working arrangement with the Interim Agreement setting forth on a temporary basis the terms of liabilities and compensation to be paid to the respective parties.

            3.         Under Postal Regulations mail addressed to unincorporated firms 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 (DMM §§153.52).

            4.         The mail in dispute addressed to Dr. Joseph Boyer, 1210 S. Cedar Crest Blvd., Suite 2800, Allentown, Pennsylvania  18103-6208 is to be delivered t that address.

            5.         The purpose of this proceeding is to determine which party is entitled to delivery of the mail in the absence of an agreement between the parties or a court order.  This decision does not determine the question of ownership of the mail or ultimate entitlement to it.  Thus, if Disputant Toonder receives personal mail clearly intended for Disputant Boyer, he should have the mail forwarded to the correct destination.

            6.         The attached mail delivery instruction to the Postmaster should be issued.

James D. Finn, Jr.
Administrative Judge

[1] *The caption has been corrected to include Dr. Toonder's first initial "F".