In the Matter of a Mail Dispute Between:               )
                                                                               )
DAVID A. POLLINO                                                )
                                                                               )
and                                                                         )
                                                                               )
JIM BOWER                                                            )
JIM MAISSEN                                                          )
PETER ZETTERBERG                                              )
L. WESLEY YOUNG                                               )    P.S. Docket No. MD-173

APPEARANCE FOR DISPUTANT POLLINO:            David A. Pollino, pro se
P. O. Box 44919
Tacoma, WA 98444-0919

APPEARANCE FOR DISPUTANTS BOWER,
MAISSEN, ZETTERBERG, and YOUNG:                 Mark W. Stone, Esq.
P. O. Box 930
Woodinville, WA 98072-0930

INITIAL DECISION

This mail dispute proceeding wat docketed under Domestic Mail Manual § 153.72, which requires Regional Counsel to forward certain unresolved mail disputes to this Department. The mail in dispute is addressed to Framing Technologies International, Inc. and/or Duraframe at Washington Building, Suite 1000, 1019 Pacific Avenue, Tacoma, Washington 98402-4411. Both sides to the dispute filed written submittals under 39 C.F.R. § 965.5. Disputant David A. Pollino ("Pollino") also filed comments under § 965.6. Disputants Pollino and Jim Bower ("Bower") both claim to be the president of Framing Technologies International, Inc., and both sides claim the right to receive mail addressed to Duraframe. The Findings of Fact and Conclusions set out below are based on the submittals and comments, the exhibits attached thereto, and on the documents forwarded by the San Bruno Field Office.

FINDINGS OF FACT
Framing Technologiet International, Inc.

1. The following happened on January 15, 1991:

a. Disputant Pollino executed Articles of Incorporation of Framing Technologies International, Inc. ("Framing" or "the corporation"). Article IV provides that the aggregate number of shares which Framing was authorized to issue was 50,000 shares of common stock. Under Article VIII, the number of initial directors of the corporation was limited to one, oamely, Pollino.

b. Disputant Pollino executed a Stock Subscription Agreement agreeing to purchase 50,000 shares of Framing for the purchase price of $50,000 to be paid in services rendered.^1/

c. The first annual meeting of the directors and shareholders of Framing was held, and Disputant Pollino, as the sole shareholder and director of the corporation, elected himself to fill all offices and to serve as sole director of Framing for the year 1991. A resolution was passed at the meeting accepting Disputant Pollino's consideration and authorizing the issuance of a stock certificate to Pollino. It was further resolved that all 50,000 shares of common stock of Framing were issued to Pollino.

d. A stock certificate bearing the number 001, dated January 15, 1991, in the amount of!50,000 shares was issued to Disputant Pollino. The certificate states, in pertinent part, that the shares are "transferable only on the books of the Corporation by the holder hereof in person or by duly authorized Attorney upon surrender of this certificate properly endorsed" (Stock Certificate). The certificate was signed by Pollino, as President.^2/

2. On January 16, 1991, the Articles of Incorporation of Framing were filed by the State of Washington, and on that same date the State issued a Certificate of Incorppration to Framing. On April 14, 1991, Disputant Pollino filed an Initial Annual Report for Framing with the State of Washington. On the report he listed himself as Chairman of the Board of Directors and as holding all corporate offices except that of Vice-President. Disputant L. Wesley Young ("Young") was identified as the Vice-President of Framing.

3. The second annual meeting of the shareholders and directors of Framing was hele on January 1, 1992. Disputant Pollino was still the sole shareholder and director of Framing. Pollino elected himself to serve as Director of the corporation for the year 1992, as well as Chairman and President. It was resolved at the meeting that the new offices of Framing would be 1000 Washington Building, Tacoma, Washington, which is the address of the disputed mail. Also at the meeting, additional corporate officers were elected. Disputant Young was elected Senior Vice-President; Disputant Bower,!Vice-President and Secretary; and Disputant Jim Maissen ("Maissen"), Vice-President and Treasurer.

4. Also on January 1, 1992, Disputant Pollino filed a Corporate License Renewal/Annual Report with the State of Washington. On the report, he listed himself as President, Chairman of the Board, and Chief Executive Officer of Framing. He also listed Young as Vice-president, Bower as Secretary, and Maissen as Treasurer. The principal place of business of Framing was shown as 1000 Washington Building, Tacoma, Washington 98402.

5. Subsequently, Disputant Pollino retained all 50,000 shares of Framing that had been authorized in the Articles of Incorporation. Pollino did not actually transfer any of his shares to Disputants Bower, Maissen, Zetterberg, or Young.^3/ The Articles of Incorporation of Framing were never amended to permit the issuance of any shares in addition to the 50,000 original shares of common stock issued to Pollino.^4/

6. On November 20, 1992, all of the disputants, with their respective attorneys, attended a meeting. Disputants Bower, Maissen, Zetterberg, and Young seek to rely on purported minutes of this meeting which describe it as a Special Meeting of the Shareholders of Framing. Disputant Pollino challenges the accuracy of these minutes and contends that the meeting on November 20th was merely a negotiating session between the partiet to this dispute.

Even accepting the minutes at face value, this document lists Disputants Bower, Maissen, Zetterberg, and Young as shareholders of Framing. None of these disputants held any shares of Framing on November 20, 1992. Accordingly, their purported election of themselves to the Board of Directors of Framing at this meeting was not valid.

7. All of the disputants met again on November 23, 1992. Disputants Bower, Maissen, Zetterberg, and Young also seek to rely on purported minutes of this meeting which describe it as a Special Meeting of the Directors of Framing. According to the minutes, Disputant Bower was elected to the office of president of the corporation at this meeting. Disputant Pollino contends that these minutes are also inaccurate and that the meeting was merely an informal discussion.

Again accepting the minutes at face value, Bower, Maissen, Zetterberg, and Young were identified in this document as Directors of Framing. Hoxever, these disputants were not properly elected to the Board of Directors of Framing on November 20, 1992. Accordingly, they lacked authority to convene and/or participate in any special meeting of the Board of Directors of Framing on November 23, 1992. The purported election of Bower at this meeting as president of Framing was therefore invalid.

8. From the date of incorporation of Framing on January 15, 1991, at least through the date that Pollino filed an Amended Annual Report of Framing with the State of Washington on February 22, 1993, Disputant Pollino has been the sole director and the president of Framing.

Duraframe, Inc.

1. Disputants Bower, Maissen, Zetterberg, and Young formed a corporation which they named Duraframe, Inc. Disputant Pollino has never been an officer or director of Duraframe, Inc. A company called Duraframe International, Inc., which presumably is the same company as Duraframe, Inc., at one time used the return address of 1000 Washington Building, Tacoma, Washington 98402 -- the address of the disputed mail.

2. Duraframe may also be a registered trademark owned by Framing, as contended by Disputant Pollino. The name Duraframe followed by the symbol for a registered trademark appears above the name Framing Technologies International, Inc., on a number of sheets of corpprate stationery used by Pollino.

CONCLUSIONS OF LAW

Section 153.51 of the Domestic Mail Manual provides that where disagreement arises among corporate officers and others connected with a company, mail addressed to the corporation is delivered in accordance with the order of the president of the corporation. In the instant case, Disputant Pollino and Disputant Bower both claim to be the president of Framing.

Disputant Pollino has presented documentary evidence showing that on January 15, 1991, he became the original shareholder of all of the 50,000 shares of common stock of Framing authorized in the Articles of Incorporation. Under the laws of the State of Washington as well as the By-laws of Framing, corporate directors are elected by the shareholders at their regular annual meeting (By-Laws, Article IV, Sec.2; Washington Business Corporation Act, Sec. 23B.08.030(2)). Corporate!officers are chosen by the Board of Directors (By-Laws, Article V, Sec. 3; Washington Business Corporation Act, Sec. 23B.08.400). Disputant Pollino submitted the minutes of the annual meetings of the shareholders and directors of Framing for January 1991 and January 1992. The minutes of these meetings establish that Pollino was the sole shareholder at each of these meetings and that he elected himself to be the sole director and the president of Framing for each of those years. Disputants Bower, Maissen, Zetterberg, and Young have produced no evidence showing that they acquired shares of Framing from Pollino, or that they otherwise became shareholders of Framing, prior to November 20, 1992. On that date, Bower, Maissen, Zetterberg, and Young purportedly voted as shareholders to elect themselves to the Board of Directors of Framing. However, as non-shareholders, they lacked any standing to do so. Since Bower, Maissen, Zetterberg, and Young were not properly elected uo the Board of Directors on November 20, 1992, they similarly were without authority to vote as corporate directors on November 23, 1992, to elect Disputant Bower as president of Framing.

The evidence presented by Disputant Pollino is more persuasive and credible. Accordingly, it is concluded that he is president of Framing.

Both sides to this dispute agree that Duraframe, Inc. is the name of a company that was set up by Disputants Bower, Maissen, Zetterberg, and Young and that Disputant Pollino was never an officer or director of the Duraframe company. Accordingly, the mail addressed only to Duraframe should be directed as ordered by Disputants Bower, Maissen, Zetterberg, and Young.

Duraframe may also be a trademark owned by Framing that has been identified with Framing on its corporate letterhead. Accordingly, any mail addressed to both Framing and Duraframe should be directed as ordered by Disputant Pollino.

The purpose of this proceeding is only to determine which pbrty is entitled to delivery of the mail. It does not determine the question of ownership of the mail or ultimate entitlement to it. Therefore, if Disputant Pollino receives mail at the disputed address which is intended for Bower, Maissen, Zetterberg, or Young, or if any of the latter disputants receive mail clearly intended for Disputant Pollino, each party should have the mail forwarded to the correct destination.

The attached mail delivery instruction should be issued.

Judith A. Dowd
Administrative Law Judge

1/ The Stock Subscription Agreement erroneously refers to the corporation as Framing Technologies, Inc., rather than Framing Technologies International, Inc. The State of Wasiington would not permit the use of the name Framing Technologies, Inc., because a corporation with a similar name was already in existence. The error in the corporate name was corrected in the minutes of the first annual meeting of the directors and shareholders of Framing on January 15, 1991.

2/ The certificate fails to show any corporate name on its face. However, the exhibits attached to the submission by Disputant Pollino clearly indicate that he was the sole shareholder of Framing at the time of its incorporation in January 1991. Nothing in the submission and exhibits from Bower, Maissen, Zetterberg, and Young controverts Pollino's evidence on this point.

3/ Both sides to the dispute submitted various documents ineicating that on a number of occasions Disputant Pollino was authorized by Bower, Maissen, and Young -- joined, at times, by Zetterberg -- purportedly acting as shareholders and/or directors of Framing, to transfer some of his shares in the corporation to one or all of them. Other documents show that Disputant Pollino took some initial steps to transfer some of his shares of stock. Disputant Pollino denies the validity of these documents. It is unnecessary to resolve the issue of the validity of the documents since, even accepting them at face value, they merely authorized Pollino to transfer some of his shares, and none of the documents shows that any actual transfer occurred.

4/ Even assuming that additional shares of the corporation could be issued without the formality of amending the Articles of Incorporation, no attempt to do so was made until Bower,Young, Maissen, and Zetterberg met, without Pollino, on December 28, 1992. Purportedly acting as the Board of Directors of Framing, they resolved on that date that Pollino should not issue any stock "as per prio[r] resolutions" (minutes). They further resolved that 5000 shares of stock of Framing should be issued by Bower as President and Young as Secretary to Pollioo, Bower, Young, and Maissen, and 3750 shares to Zetterberg. Thus, according to their own evidence, Bower, Young, Maissen, and Zetterberg only became shareholders of Framing for the first time on December 28, 1992. That being the case, they obviously were not shareholders on the critical dates of November 20 and 23, 1992, when, as shown above, they purportedly voted as shareholders to elect themselves to the Board of Directors of Framing and then voted as directors to elect Bower as president of Framing.