In the Matter of a Mail Dispute Between

BRYANT JACOBS

          and

DR. JAMES JOSEPH MCCREADY

P.S. Docket No. MD 00-190

APPEARANCE FOR DISPUTANT          John F. O'Riordan, Esq.
BRYANT JACOBS:                               Eckert, Seamans, Cherin & Mellott
                                                             1515 Market Street
                                                             Philadelphia, PA 19102-1911

APPEARANCE FOR DISPUTANT          John T. Meli, Jr., Esq.
DR. JAMES MCCREADY:                      Morris, James, Hitchens & Williams
                                                             P. O. Box 2306
                                                             Wilmington, DE 19899-2306

This mail dispute has been docketed pursuant to Postal Operations Manual (POM 8, July 16, 1998) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to 4^th Street Chiropractic, 209 West 4^th Street, Suite 1, Wilmington, DE 19801-2204. The Wilmington Postmaster is currently holding the mail.

Both parties filed sworn statements, and other documents in support of their positions, as required by 39 C.F.R. §965.5. Both parties also filed rebuttal comments, under 39 C.F.R. §965.6. Also, after a telephone conference on August 9, 2000, several more submissions were received, including two statements directly from Dr. Richard Gold. Dr. Gold is not a party to this mail dispute, but was formerly associated with the disputants. The following findings of fact are based on all the material submitted by the parties and Dr. Gold, including material forwarded by the United States Postal Service Law Department, Philadelphia Office.

1. On October 30, 1998, Bryant Jacobs signed a lease agreement on behalf of the Wilmington Pain Management Clinic, a chiropractic business, to become the tenant at 209 West 4^th Street, Wilmington, Delaware. (Jacobs affidavit; Jacobs submission, Ex. B).

2. In December 1998, Bryant Jacobs procured insurance coverage for "Wilmington Pain Management" from Medical Society of Delaware Insurance Services, Inc. The business began operating in January 1999. (Jacobs affidavit; Jacobs submission, Ex. C).

3. On June 18, 1999, the Wilmington Pain Management Clinic, Inc., was incorporated in Georgia, by Wendell Henry, an attorney. The business address was 209 West 4^th Street, Suite 1, Wilmington, DE 19801-2204. The Articles of Incorporation named Dr. Richard Gold as President/CEO and Bryant Jacobs as the registered agent. Mr. Jacobs is not a chiropractor or a medical doctor. (McCready submission, Tab A; Jacobs submission, Ex. A).

4. Sometime during the summer of 1999, Dr. Gold left the business. At approximately the same time, Dr. McCready, a chiropractor, was employed by Wilmington Pain Management Clinic, Inc. On November 29, 1999, Mr. Henry executed Articles of Dissolution, to dissolve Wilmington Pain Management Clinic, Inc., stating that this action was approved by Mr. Henry, Dr. Gold, and Mr. Jacobs.¹ Sometime thereafter, Mr. Jacobs changed the name of the business to 4^th Street Chiropractic. There is no evidence to prove that a new corporation was formed or, if it was, who the officers are.² (Jacobs affidavit; McCready affidavit; attachment to Jacobs July 28 submission).

5. On May 7, 2000, Dr. McCready submitted a PS Form 3575, Change of Address, directing that mail addressed to 4^th Street Chiropractic, 209 West 4^th Street, Wilmington, DE 19801-2204 be forwarded to 918 New Road, Wilmington, DE 19805-5131. Mr. Jacobs opposed this, and this mail dispute arose.

6. On July 6, 2000, Dr. Gold purported to transfer all his shares in 4^th Street Chiropractic, Inc., to Dr. McCready and Bryant Jacobs, 50% to each. When this transfer document was typed, it stated that Dr. Gold was the "Transferor," and that Dr. McCready was the "Buyer." By a handwritten change, initialed by Dr. Gold and Dr. McCready, "Buyer" was changed to "Buyers," and the words "and Bryant Jacobs," were written in. Mr. Jacobs' name was also added to the signature lines, and ("50%") was added after his name and Dr. McCready's name. This was also initialed by Dr. Gold and Dr. McCready, and both signed the document. Mr. Jacobs did not sign or initial the document. (McCready submission, Tab B).

7. Bryant Jacobs signed two checks, printed with the name 4th Street Chiropractic, made payable in the amount of $2,000.00 each to Dr. James McCready in April 2000. (Jacobs submission, Ex. D).

8. On August 9, 2000, Dr. Gold submitted a letter stating that, as the only director of Wilmington Pain Management, Inc., he held a Board of Directors meeting of the company on August 9, 2000, and resolved that the disputed mail should be sent to P.O. Box 30760, Wilmington, DE 19805-0760. He attached a copy of the "Minutes" of the meeting.

9. On August 15, 2000, Dr. Gold submitted a sworn statement, stating that Mr. Jacobs is the owner of 4^th Street Chiropractic, that Dr. McCready is an employee, and that the mail should be delivered to 209 West 4^th Street. He also stated that he had signed documents earlier that probably confused this issue and that any documents previously signed by him should be disregarded.³

10. On August 24, 2000, Dr. McCready filed another affidavit, in which he states that he is now the sole director of "Wilmington Pain and Management Clinic, Inc., d/b/a 4^th Street Chiropractic, Inc." Relying on the July 6 transfer of shares from Dr. Gold (see Finding of Fact #6), he states that as a 50% shareholder he held a Shareholders' Meeting on August 24, 2000, elected himself sole director, terminated Mr. Jacobs from holding any official position in the company, and resolved that the disputed mail should be delivered to P.O. Box 30760 in Wilmington. He attached the "Minutes" of the meeting.

Both parties have filed documents accusing the other party of various acts of malfeasance, but have submitted very little information that is helpful in establishing entitlement to delivery of the mail. Based upon what has been submitted, however, Mr. Jacobs has the stronger claim. Although he has presented nothing to prove that 4^th Street Chiropractic is a corporation or that he is an officer, or to prove his assertion that he is the "sole owner," he did lease the property and procure the insurance. He also signed what appear to be payroll checks payable to Dr. McCready. Dr. McCready has not shown that he was/is more than an employee.

The purported "Stock Transfer Agreement," by which Dr. McCready claims to own 50% of "4^th Street Chiropractic, Inc.," has little probative value. As noted above, it is not clear that there is such a corporation. It is also not clear that Dr. Gold owned any shares of the previous corporation, Wilmington Pain Management Clinic, Inc. For these same reasons, I find Dr. McCready's August 24, 2000 submission not to be persuasive. These conclusions are also supported by the August 15, 2000 affidavit of Dr. Gold, which I find reliable.

In one of his submissions, Dr. McCready suggests that a judicial determination of the "shareholder deadlock" might be appropriate, or that an accounting firm might hold the mail and checks until this dispute is resolved or settled. Those are not unreasonable ideas, but neither are they something that can be decided or ordered in this forum.

This decision deals only with delivery of the mail. It does not attempt to resolve any underlying disputes between the parties, nor does it determine ownership of the contents of the mail. If Mr. Jacobs receives mail that is intended for Dr. McCready, it is his responsibility to forward that mail. Also, if either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such order. POM § 616.3.

The attached delivery order should be issued.

Bruce R. Houston
Chief Administrative Law Judge

¹ In one of the recent submissions, Mr. Jacobs filed a copy of what purports to be "Amended Articles of Dissolution," dated August 1, 2000, and signed by Mr. Henry. Apparently, therefore, this corporation has not yet been dissolved. Whether it has or not does not change the outcome of this case. (Jacobs, August 24 submission).
² The purported stock certificate attached to Mr. Jacobs' July 28 submission is not sufficient to prove this.
³ Dr. McCready filed an objection to the admissibility of Dr. Gold's statements on the ground that they are inadmissible hearsay under Rule 802 of the Federal Rules of Evidence. On the other hand, Dr. McCready wishes to rely on the "Minutes" of the August 9 meeting submitted by Dr. Gold. I do not find Dr. Gold's statements to be hearsay, but in any event the Federal Rules of Evidence are not strictly applied in mail dispute cases. Under the applicable rule, 39 C.F.R. §965.9, Dr. Gold's statement is relevant and material, and I find his April 15 statement to be at least as reliable as any other documents that have been filed. As to the inability to cross-examine Dr. Gold, sworn written statements are routinely accepted in mail dispute cases (see 39 C.F.R. §965.5).

TO THE POSTMASTER AT:      WILMINGTON, DE 19803-9998

                                     RE:      Mail Dispute Between

                                                BRYANT JACOBS
                                                          and
                                                DR. JAMES JOSEPH MCCREADY

                                                P.S. Docket No. MD 00-190

All mail currently being held, or hereafter received, addressed to:

4^TH STREET CHIROPRACTIC
209 West 4^th Street, Suite 1
Wilmington, DE 19801-2204

shall be delivered as addressed.

Judicial Officer

PROPOSED ORDER - NOT ENFORCEABLE UNTIL DATED AND
SIGNED BY THE JUDICIAL OFFICER