In the Matter of a Mail Dispute                                )
Between:                                                               )
                                                                               )
RONALD GASALBERTI                                          )
                                                                               )
and                                                                         )
                                                                               )
ANTHONY M. SINATRA                                         )    P. S. Docket No. MD-186

APPEARANCE FOR
RONALD GASALBERTI:                                         None

APPEARANCE FOR
ANTHONY M. SINATRA:                                         Daniel Louis Grossman, Esq.
11 Commerce Drive
Cranford, NJ 07016-3501

INITIAL DECISION

The Postal Service Law Department, Philadelphia Field Office, has referred this mail dispute for resolution pursuant to Domestic Mail Manual (DMM) § 153.72. The mail in dispute is that addressed to Conserva Tech, Inc. and Conserva Tech Engineering Co., Inc., 44 Passaic Street, Garfield, NJ 07026-3136. Neither party has submitted a sworn statement in accordance with 39 C.F.R. § 965. However, counsel for Disputant Sinatra has submitted comments on his behalf. Since the submittal on behalf of Mr. Sinatra has not been objected to it will be considered. The following findings of fact and conclusions of law are based on the comments submitted on behalf of Mr. Sinatra and on documents forwarded by the Philadelphia Field Office.

FINDINGS OF FACT

1. In May 1991, Conserva-Tech, Inc. (the corporation) was incorporated in the State of New Jersey. The address of the corporation's initial registered office was 440A Boulevard, Hasbrouck Heights, NJ 07604. The initial Board of Directors of the corporation consisted of two members -- Disputant Ronald Gasalberti and Paul Landry. The corporation had the authority to issue a total of 10,000 shares of stock. (Certificate of Incorporation).

2. A stock certificate in the record indicates that 10,000 shares of stock were issued to Disputant Gasalberti in June 1991. The certificate bears the signatures of Roseann Gasalberti as Secretary/Treasurer and Ronald Gasalberti as President. The record contains no other evidence of Mr. Gasalberti's appointment to the office of president.

3. In August 1991, the corporation applied for an Employer Identification Number. The application listed Messrs. Gasalberti and Landry as the principal "officer[s], grantor[s], or general partner[s]." Conserva-Tech Engineering Co., Inc., was listed as a trade name for the business and 440A Boulevard, Hasbrouck Heights, NJ was recorded as the corporation's mailing address. (Application for Employer Identification Number, Form SS-4).

4. By January 1993, the corporation was using the disputed Passaic Street address to receive mail.^1/ (January 6, 1993, letter from EN/TECH.)

5. The record does not indicate when Disputant Sinatra first became associated with the corporation or the nature of his initial association. However, in January 1993, mail from a potential vendor to the corporation was addressed to him at the Passaic Street address. (Id.).

6. On or about March 8, 1993, Disputant Gasalberti apparently filed a bankruptcy petition under Chapter 7 of the bankruptcy statute (11 U.S.C. Chap. 7). The record indicates that the petition was filed by Mr. Gasalberti as an individual and not on behalf on the corporation. In a schedule of personal property in connection with the bankruptcy, Mr. Gasalberti is listed as having a 50 percent interest in the corporation.

7. In a letter dated March 29, 1993, and addressed to Paul Landry as president of the corporation, Disputant Sinatra offered to purchase 50 percent of the stock of the corporation from Mr. Landry. The letter bears what appear to be the signatures of Messrs. Sinatra and Landry under the words "ACCEPTED & AGREED" at the bottom of the letter. The record contains no other indications of Mr. Landry's appointment as president of the corporation, nor any indications of his status as a stockholder.

8. On April 7, 1993, Disputant Gasalberti filed a change of address order seeking to have mail addressed to the corporation at 44 Passaic Street forwarded to 148 Grove Street, Lodi, NJ 07644.

9. In April 1993 correspondence addressed to Disputant Gasalberti and to the Postmaster, Garfield, NJ, Disputant Sinatra identified himself as president of the corporation.

10. Based on the submittal on Mr. Sinatra' s behalf, it appears that the corporation continues to exist and is using the 44 Passaic Street address for its business dealings. In his submittal, Mr. Sinatra asks that the mail be delivered as addressed or, in the alternative, to the trustee appointed in connection with Mr. Gasalberti's bankruptcy proceeding.

CONCLUSIONS OF LAW

1. Disputant Ronald Gasalberti failed to make the submittal required by 39 C.F.R. § 965.5 and thus is in default in this proceeding pursuant to 39 C.F.R. § 965.7.

2. Section 153.41 of the DMM^2/ provides:

"All mail addressed to a governmental or nongovernmental organization (including but not limited to corporations, firms, sole proprietorships, partnerships, joint ventures, and associations) or to an individual by name or title ... at the address of the organization is delivered to the organization.... If disagreement arises as to where any such mail should be delivered, it must be delivered according to the order of the organization's president or equivalent official."
3. In this instance the identity of the president of the corporation is not determinable from the record before me. In view of Mr. Gasalberti's default in this matter and in view of the fact that the corporation continues to operate from the disputed address, I conclude that mail addressed to the corporation at 44 Passaic Street, Garfield, NJ 07026-3136 should be delivered as addressed, and not forwarded as directed by Mr. Gasalberti.

4. Resolution of this dispute determines only the right to delivery of the mail. It does not determine the question of ownership. If Disputant Sinatra or the corporation receives mail intended for Disputant Gasalberti, that mail should be forwarded to the correct destination.

The attached delivery order should be issued.

David I. Brochstein
Administrative Judge

(Text of delivery order)

Mail addressed to Conserva Tech, Inc., or Conserva Tech Engineering Co., Inc. at 44 Passaic Street, Garfield, NJ 07026-3136 is to be delivered as addressed.

1/ The record does not indicate with any more precision when the corporation began to use that address.

2/ Reference is made to DMM Issue 45, dated December 20, 1992, which was the version in effect at the time this dispute was referred to the Judicial Officer. Issue 46, which represents a major reorganization and rewrite of the DMM and which became effective July 1, 1993, did not change the substance of the direction provided by this paragraph.