In the Matter of a Mail Dispute Between

ROBERT NICOTERA

           and

JOSEPHINE NICOTERA

P.S. Docket No. MD 00-28

APPEARANCE FOR DISPUTANT      Vito F. Canuso, Jr., Esq.
ROBERT NICOTERA:                        Suite 920 – The Bellevue
                                                         200 South Broad Street
                                                         Philadelphia, PA 19102-3812

APPEARANCE FOR DISPUTANT      Alan L. Frank, Esq.
JOSEPHINE NICOTERA:                    1835 Market Street, Suite 320
                                                         Philadelphia, PA 19103-2964

This mail dispute has been docketed pursuant to Postal Operations Manual (POM 8, January 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 Joseph Nicotera and/or all mail containing the trade name Joe’s Auto Clinic, 1903-05 Jackson Street, Philadelphia, Pennsylvania 19145-3616 and Joseph Nicotera, 46 Yale Road, Marlton, New Jersey 08053-2434. The Philadelphia and Marlton Postmasters are currently holding the mail.

Both parties made submissions, although the submission by Disputant Josephine Nicotera did not contain her sworn statement, as is specified in 39 C.F.R. §965.5. The following findings of fact are based on the parties’ submissions and the documents from the Postal Service that were included in the file referred to the Judicial Officer.

1. Disputant Robert Nicotera is the son of Joseph Nicotera. From 1968 to 1986 they jointly operated an automobile repair business named Joe’s Auto Clinic, at 1903-05 Jackson Street, Philadelphia, Pennsylvania. In 1986, Disputant Robert Nicotera assumed individual ownership of the business. (Sworn Statement of Robert Nicotera).

2. Joseph and Disputant Josephine Nicotera jointly owned the property at 1903-05 Jackson Street until the death of Joseph Nicotera in February 1999. Upon the death of Joseph Nicotera, Disputant Josephine Nicotera became sole owner in fee simple of the property. (Statement of Josephine Nicotera, Exhibit A).

3. Joseph Nicotera died testate in February 1999, and Frank B. Weisz was appointed executor of his estate. In a letter dated January 24, 2000, Mr. Weisz notified the Philadelphia Postmaster that he was the executor of the estate of Joseph Nicotera and requested that all mail addressed to Joseph Nicotera, 1905 Jackson Street, Philadelphia, PA 19145, be forwarded to Mr. Weisz.

4. By letter dated February 9, 2000, the Philadelphia Postmaster acknowledged Mr. Weisz’s right to receive mail addressed to Joseph Nicotera and complied with the forwarding request. (Sworn Statement of Robert Nicotera, attachments RN-2, RN-3).

5. Currently, Mr. Weisz, as executor of the estate of Joseph Nicotera, recognizes Disputant Robert Nicotera’s ownership of Joe’s Auto Clinic (Sworn Statement of Robert Nicotera).

Disputant Robert Nicotera argues that he is the sole owner and operator of the business known as Joe’s Auto Clinic and, as such, has the right to receive delivery of mail addressed to and intended for that business. Mr. Nicotera does not dispute the right of Mr. Weisz, the executor of the estate of Joseph Nicotera to receive mail addressed to Joseph Nicotera at the 1903-05 Jackson Street property. Disputant Josephine Nicotera argues that, as the owner of the property at 1903-05 Jackson Street, she has the right to direct delivery of all the mail addressed to that location.

It is paramount that mail be delivered to its intended recipients. See Reynolds v. Conrad, P.S. Docket No. MD 96-211; Mendoza v. Travers, P.S. Docket No. MD 96-12. In this dispute, the customers, vendors and other parties intending to transact business with Joe’s Auto Clinic presumably intend that mail they send to that business be delivered to the operator of the business. The business is owned and operated by Robert Nicotera (Finding of Fact No. (FOF) 1). Although Disputant Josephine Nicotera owns the property where the business is operated, there is no evidence that she has any interest in the business itself.

Accordingly, mail addressed to Joe’s Auto Clinic, 1903-05 Jackson Street, Philadelphia, PA 19145-3616, should be delivered as directed by Disputant Robert Nicotera. Mail addressed to Joseph Nicotera at 1903-05 Jackson Street, Philadelphia, PA 19145-3616, should be delivered as directed by Mr. Frank B. Weisz, who is the executor of the estate of Joseph Nicotera. Mail addressed to 46 Yale Road, Marlton, NJ 08053-2434 should be delivered as addressed unless otherwise directed by Mr. Frank Weisz.⁽¹⁾

This decision addresses only the right to delivery of the mail. It does not address any other dispute between the parties, nor does it address the question of ownership of the mail. If either Disputant receives mail intended for the other, that mail should be promptly forwarded to the other party. Moreover, if either party obtains a court order regarding delivery of the mail, postal regulations provide that the mail will be delivered in accordance with such an order. POM §616.3.

The attached delivery order should be issued.

William K. Mahn
Administrative Judge

¹ There is no evidence in the record of this mail dispute that Mr. Weisz has attempted to receive or direct the delivery of mail addressed to Joseph Nicotera at the 46 Yale Road, Marlton, NJ address.

TO THE POSTMASTERS AT: PHILADELPHIA, PA 19145-9998
                                        RE: MARLTON, NJ 08053-9998
                                              ROBERT NICOTERA
                                                          and
                                              JOSEPHINE NICOTERA
                                              P.S. Docket No. MD 00-28

Mail addressed to Joe’s Auto Clinic, 1903-05 Jackson Street, Philadelphia, PA 19145-3616, should be delivered as directed by Robert Nicotera. Mail addressed to Joseph Nicotera at 1903-05 Jackson Street, Philadelphia, PA 19145-3616, should be delivered as directed by Mr. Frank B. Weisz, who is the executor of the estate of Joseph Nicotera. Mail addressed to 46 Yale Road, Marlton, NJ 08053-2434 should be delivered as addressed unless otherwise directed by Mr. Frank Weisz.

Judicial Officer