In the Matter of a Mail Dispute Between

DENNIS ALLER

           and

FRED SALMONS

P.S. Docket No. MD 00-359

APPEARANCE FOR DISPUTANT            Don E. Wolery, Esq.
          DENNIS ALLER:                            3620 N. High Street, Suite 308
                                                               Columbus, OH 43214-3643

APPEARANCE FOR DISPUTANT            Charley Hess, Esq.
          FRED SALMONS:                         1520 Old Henderson Road, Suite 102A
                                                               Columbus, OH 43220-3639

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 Flowers by Dennis, 1371 Grandview Avenue, Columbus, OH 43212-2802. The Columbus Postmaster is currently holding the mail.

Only Disputant Fred Salmons submitted a sworn statement in support of his position, as required by 39 C.F.R. §965.5. However, Disputant Dennis Aller did file certain documents with the Postal Service. The following findings of fact are based on the submission of Mr. Salmons, as well as the documents from Mr. Aller and the Postal Service that were included in the file forwarded to the Judicial Officer.

1. On May 4, 1998, the owner of Flowers by Dennis, Fred Salmons, entered into a management agreement with Dennis Aller in which Mr. Aller was "hire[d] and employ[ed] to manage and operate" the business. In return for a $1000 per week salary and a monthly bonus equal to the net profit of the business, Mr. Aller agreed to manage all aspects of the business. Mr. Aller also agreed to be responsible for all losses incurred by the business. Under paragraph 5 of the agreement, Mr. Aller had the right to purchase the business for $5000 after November 1, 1998. (Management Agreement).

2. The vendor’s license of the building and the federal tax identification number of the business are in the name of Mr. Salmons. However, the building in which the business is operated (at 1371 Grandview Avenue), is leased by Mr. Aller, and utilities to the building were arranged for by Mr. Aller. (Salmons Submission; Postal Service Submission).

3. After entering into the Management Agreement, Mr. Salmons and Mr. Aller proceeded to jointly operate the business. Mr. Salmons ordered supplies and paid all bills and taxes owed by the business. Mr. Salmons invested his own money, as well as borrowed money, to operate the business. (Salmons Submission).

4. At some point, however, Mr. Aller suffered a stroke or other physical ailment, and his daughter, Ms. Christine Barclay, obtained a power of attorney from her father to act in his behalf. (Salmons Submission).

5. A dispute thereafter ensued over ownership of the business between Mr. Salmons on one hand, and Mr. Aller and Ms. Barclay on the other. Mr. Aller had the locks to the building changed, thereby barring Mr. Salmons from the building and this mail dispute ensued. (Salmons Submission).

Mr. Salmons concedes that Mr. Aller, as the lessee of the building, has the right to the "space." Mr. Salmons argues, however, that he is the owner of the business being operated at 1371 Grandview Avenue, Columbus, Ohio.

It is clear from the terms of the Management Agreement between the disputants that Mr. Salmons was the owner of the business known as Flowers by Dennis, and operated at 1371 Grandview Avenue, and that Mr. Aller was being employed to manage and operate the business. Although under paragraph 5 of the agreement, Mr. Aller had the right to buy the business from Mr. Salmons, he has not shown that he has done so¹  (Finding of Fact No. 1). It can only be concluded, therefore, that Mr. Salmons is presently the owner and, as the owner, has the right to control delivery of the mail.

This decision deals only with delivery of the mail. It does not attempt to decide any other dispute between the parties. If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order. POM §616.3.

The Judicial Officer should issue an Order to the Columbus Postmaster directing that the disputed mail be delivered as directed by Mr. Fred Salmons.

William K. Mahn
Administrative Judge

¹ Mr. Aller alleges that he attempted to exercise his right to buy the business on August 1, 2000, and that Mr. Salmons refused to accept the terms of the buyout. However, Mr. Salmons disputes that he refused to accept the offer. Mr. Salmons states that Mr. Aller never offered the $5000 buyout required by the Management Agreement. (Aller Submission; Salmons Rebuttal).