In the Matter of a Mail Dispute                  )
Between:                                                 )
                                                                 )
MARKETING AND CONSULTING, INC.      )
RICHARD JONES, President and              )
DR. CHARLES M. KEEFER                        )
                                                                 )
                       and                                    )
                                                                 )
EDWARD G. GOLDWATER, D.C.              )  P.S. Docket No. MD 95-76

APPEARANCE FOR MARKETING AND
CONSULTING, INC., et al.:                        Richard H. Jones
                                                                 Charles Keefer
                                                                 1015 North 1st Street
                                                                 Phoenix, AZ 85004-1924
APPEARANCE FOR
EDWARD G. GOLDWATER :                     Edward G. Goldwater
                                                                  East 3129-15th Avenue
                                                                  Spokane, WA 99223

INITIAL DECISION

The United States Postal Service Law Department has referred this mail dispute to this office for resolution. The mail in dispute is that addressed to Edward G. Goldwater, D.C. and Affordable Chiropractic, at 1616 East Main Street, Suite 111, Mesa, AZ 85203-9072. Disputant Edward G. Goldwater filed an unsworn statement⁽¹⁾ and also submitted comments on the other parties' submittal. Disputants Richard Jones and Charles Keefer have filed an unsworn statement. The following findings of fact and conclusions of law are based on the submittals of the parties and the documents forwarded by the Law Department.

FINDINGS OF FACT

1. On December 27, 1994, Dr. Goldwater filed a voluntary petition under Chapter 13 of the Bankruptcy Code in United States Bankruptcy Court, District of Arizona. Dr. Goldwater filed as an individual, but listed the nature of the debts as business debts and the type of his business as chiropractor. He listed the disputed address as his mailing address, and a different address as his street address.

2. On January 15, 1995, Dr. Goldwater (seller) and Marketing and Consulting, Inc. (purchaser, represented by its president, Dr. Richard Jones), entered into a contract for the sale of a chiropractic business known as Affordable Chiropractic, located at the disputed address. Under the terms of the sale, the purchaser was to pay the seller $1,000 upon signing the contract; $4,000 by February 1, 1995; and $5,000 by July 31, 1995. The $1,000 check tendered to Dr. Goldwater at the time of signing the contract was later returned by the bank for insufficient funds. The returned check was replaced, at least in part, by a cashier's check in the amount of $800.00, dated January 20, 1995.

3. Under the terms of the agreement, the purchasers were required to begin operating the business the next day, January 16, 1995, and it appears from the record that they did, in fact, begin operating at about that time and have been operating the business since then.

4. On January 17, 1995, Dr. Jones filed change of address forms with the Postal Service for mail addressed to Dr. Goldwater or to Affordable Chiropractic at the disputed address. Both notices directed that mail be forwarded to PO Box 30843, Mesa, AZ.

5. On January 27, 1995, a document purporting to assign the lease for the property at the disputed address to the purchaser was signed by Elisa Ortega, who had been given power of attorney by Dr. Goldwater.⁽²⁾ The assignment purportedly transferred the lease to Marketing and Consulting, Inc. (the purchaser).⁽³⁾

6. On or about February 5, 1995, Dr. Goldwater notified the Postal Service that there was a dispute as to the delivery of mail addressed to 1616 East Main Street, Suite 111, Mesa, AZ, the location of the business.

7. On February 10, 1995, on Dr. Goldwater's motion, the Bankruptcy Court dismissed his case.

8. Dr. Goldwater appears to have filed actions against both the other parties and against the Postal Service in United States District Court in Washington State and in Arizona. The record contains no evidence of any resolution of or decisions in those actions.

DECISION

On January 15, 1995, Dr. Goldwater agreed to sell his chiropractic business to Marketing and Consulting, Inc., and the parties signed an agreement to that effect. As part of the agreement, the purchaser, represented by Richard Jones, agreed to begin operating the practice the next day. It appears that the practice did begin operating shortly thereafter and has been operated since by Disputants Jones and Keefer. Further, it appears that Dr. Goldwater, through a power of attorney granted to Elisa Ortega, attempted to transfer the lease to the disputed premises to Disputants Jones and Keefer. Based on the sale of the business to Disputant Marketing and Consulting, Inc., and the fact that it is now being operated by Disputants Jones and Keefer, I conclude that Disputants Jones and Keefer are entitled to receive mail addressed to the disputed address.

Although Dr. Goldwater now argues that he never assented to the purchase of the business, he does not deny that he signed the agreement of sale. Therefore, I do not accept his argument. He has also not demonstrated that, under Arizona law, the fact that the initial payment check was returned by the bank invalidated the sale rather than only giving him an action against the purchasers for damages. Finally, he has not demonstrated that his petition under the Bankruptcy statute, later dismissed, would have acted as a legal impediment to the sale that he agreed to.

Accordingly, I conclude that the mail addressed to Edward G. Goldwater, D.C. or Affordable Chiropractic, at 1616 East Main Street, Suite 111, Mesa, AZ 85203-9072 should be delivered as directed by Richard Jones, president of Marketing and Consulting, Inc., the purchaser of the business.⁽⁴⁾

This decision affects only the delivery of the mail and not its ownership. Should mail belonging to Dr. Goldwater personally and not connected with the business be delivered to Disputants Jones and Keefer, they are to promptly have the mail forwarded to Dr. Goldwater.

The attached mail deliver order should be issued.

David I. Brochstein
Administrative Judge

1. Dr. Goldwater's submittal, although stated to be under oath, does not bear the acknowledgement of a notary or other person authorized to administer oaths.

2. Ms. Ortega's power of attorney was revoked by Dr. Goldwater on January 31, 1995, but was in effect at the time she executed the assignment document.

3. The record is not conclusive as to whether the attempted assignment was accepted by the landlord.

4. However, if a court rules that the mail is to be delivered in a different manner, the court's ruling is to be followed.