In the Matter of a Mail                                              )
Dispute Between:                                                   )
                                                                                )
ATLAS COMMUNICATIONS                                    )
SYSTEMS INC.                                                        )
                                                                                )
and                                                                          )
                                                                                )
JOHN AND WENDY OLESKY                                  )     P. S. Docket No. MD-172

APPEARANCE FOR ATLAS                                    Gary S. Miller, Vice President
COMMUNICATIONS SYSTEM INC.:                          1378 Bellefontaine Avenue
Suite B
Lima, OH 45804-3110

APPEARANCE FOR JOHN AND                               Wendy J. Olesky
WENDY OLESKY:                                                   John Olesky
211 Durrell Street
Findlay, OH 45840-2503

INITIAL DECISION

Chief Counsel, Philadelphia, has referred this mail dispute for resolution pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965, Rules of Practice in Proceedings Relative to Mail Disputes. The mail in dispute is that addressed to Automated Voice Communications, 913 N. Main Street, Findlay, OH 45840-3670. The Findlay Post Office is holding mail so addressed. Wendy Olesky filed a written statement with exhibits in support of the Oleskys' claim to the mail. Atlas Communications Systems Inc. ("Atlas") did not make the submittal required by 39 C.F.R. § 965.5 but filed comments to Ms. Olesky's submittal as permitted by 39 C.F.R. § 965.6, and included with its comments documents that had not been previously submitted. The Oleskys were allowed an opportunity to respond to Atlas' comments and documents and submitted further comments in support of their claim to the disputed mail. The findings of fact made below are based on documents from the Findlay Post Office transmitted with the mail dispute, Ms. Olesky's statement and exhibits, Atlas' comments and documents, and the Oleskys' further response to Atlas' comments.

FINDINGS OF FACT

1. John and Wendy Olesky are two of the four partners of Automated Voice Communications, an Ohio partnership formed May 20, 1990, for the purpose of providing telephone answering and voice messaging service to individuals and businesses. At some time before July 7, 1992, Automated Voice Communications established its answering service at 913 North Main Street in Findlay, Ohio.

2. Also prior to July 7, 1992, the Oleskys established a separate telephone sales and service business they operated out of the same premises.

3. On July 7, 1992, Atlas entered an agreement with John Olesky dba Automated Voice Communications, Inc., under which the latter sold to Atlas, a Lima, Ohio company, certain assets, which included office equipment, jacks, connectors and wire. In addition to payment for the equipment, Atlas agreed to assume responsibility for the rent and utilities at 913 North Main Street in Findlay and to be responsible for marketing and installation of all new services. The agreement provided that all accounts and new business became the property of Atlas. It also provided that John Olesky would work for Atlas as a technician and provided an hourly rate for his work as a technician plus a sales commission.

4. The Oleskys continued to operate a telephone answering and messaging service from the premises, sharing the rent and utilities with Atlas.

5. On September 9, 1992, Atlas^1/ entered an agreement with John Olesky to allow Mr. Olesky to continue to use part of the space at 913 North Main for a voice mail system. Under the agreement, the parties shared the rent and utilities. According to the September 4, 1992 letter from Atlas conveying the agreement to Mr. Olesky, the agreement was "drawn up as a result of our conversation on Thursday, September 3 regarding your resignation from Automated Voice Communications" and was set up to allow Mr. Olesky to "rent the back third of the 913 North Main Street address, and utilize that space for [Mr. Olesky's] voice mail system."

6. On September 18, 1992, Atlas submitted a change of address order (PS Form 3575, June, 1991) to the Findlay Post Office to forward mail addressed to Automated Voice Communications at 913 N. Main in Findlay to Atlas' office in Lima.

7. By letter dated December 21, 1992, Atlas wrote to business customers in Findlay advising that its merger with Automated Voice Communications to provide telephone sales and service to Findlay customers had not worked out. It stated that it was "no longer associated with Automated Voice Communications of Findlay," but that it would continue providing telephone sales and service from the office at 913 North Main.

8. Atlas has now moved out of the premises at 913 North Main Street, and the Oleskys continue to operate an answering and messaging service from that address. In their submittal, the Oleskys ask that mail addressed to Automated Voice Communications, 913 North Main Street, be delivered as addressed.

CONCLUSIONS OF LAW

1. Atlas failed to make the submittal required by 39 C.F.R. § 965.5 and thus is in default in this proceeding. Nevertheless, as Atlas' comments and documents were submitted within the comment period permitted by 39 C.F.R. § 965.6 and the Oleskys were afforded an opportunity to respond to that submission, I have considered Atlas' comments and documents as well the Oleskys' submittal and do not base my decision on Atlas' default. See 39 C.F.R. § 965.7.

2. By the agreement of July 9, 1992 (Finding 3), Atlas bought at least part of the business known as Automated Voice Communications located at 913 North Main Street in Findlay.^2/ Given the nature of Atlas' business -- sales and service of telephone equipment (Finding 7) -- and its acquiescence in the Oleskys' continued operation of the answering service (Findings 4, 5, 7), it is likely that the business acquired by Atlas was the Oleskys' telephone sales and service business and not the telephone answering service.

3. Although the purchase agreement (Finding 3) does not specifically mention whether the business name, Automated Voice Communications, was included in the sale, that Atlas acquired use of the name is confirmed by the September 9, 1992 agreement (Finding 5) and its transmittal in which Atlas' representative unmistakably and frequently used the name of Automated Voice Communications to describe Atlas' interests. Mr. Olesky executed the agreement apparently without objection to Atlas' use of the Automated Voice Communications name.

4. Nevertheless, in its December 21, 1992 letter to customers, Atlas relinquished whatever interest it might have had in the Automated Voice Communications name (Finding 7). This supports the Oleskys' claim that they use and are entitled to use the Automated Voice Communications name for their answering and messaging service at 913 North Main. Additionally, any recipient of Atlas' letter would not address mail intended for Atlas to Automated Voice Communications. Thus, it is probable that those sending mail to Automated Voice Communications at 913 North Main after December 21, 1992, intended it for the Oleskys' answering service and not for Atlas.

5. Further, as the Oleskys operated the business of Automated Voice Communications at 913 North Main Street in Findlay before the transaction with Atlas, throughout the relationship with Atlas, and to this date (Findings 1, 3, 4, 5, 8) and Atlas has moved out of the premises (Finding 8), they are entitled to have the mail sent to Automated Voice Communications at that address delivered as addressed under the authority of DMM § 153.52 which provides:

"Mail addressed to unincorporated firms or partnerships 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."

6. Therefore, mail addressed to Automated Voice Communications at 913 North Main Street, Findlay, Ohio, should be delivered as addressed.

7. This decision does not determine the ownership of the disputed mail. Any mail received by the Oleskys or Automated Voice Communications that is intended for Atlas is to be promptly forwarded to Atlas.

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

Norman D. Menegat
Administrative Judge

1/ Throughout the agreement, Atlas is identified as "AUTOMATED VOICE COMMUNICATIONS, INC./ATLAS COMMUNICATIONS SYSTEMS, INC.", "AUTOMATED VOICE COMMUNICATIONS/ATLAS COMMUNICATIONS", "AUTOMATED VOICE COMMUNICATIONS" or "AUTOMATED VOICE". Mr. Olesky is referred to throughout as "JOHN OLESKY".

2/ While the agreement purports to convey assets of Automated Voice Communications, Inc., there is nothing in the record to indicate there was a different business known as Automated Voice Communications, Inc., that Mr. Olesky intended to convey. The documents appear to use Automated Voice Communications and Automated Voice Communications, Inc., interchangeably, and I attach no significance to the occasional addition of "Inc." to the name of the business conveyed.