In the Matter of a Mail Dispute Between

DR. JAMES AND MRS. DIANA SILVA

          and

DRS. ANDREW AND ELIZABETH STIEGLER

P.S. Docket No. MD 99-494

APPEARANCE FOR DISPUTANTS                  Laurence E. Sturtz, Esq.
DR. JAMES AND MRS.DIANA SILVA:            Carlile, Patchen & Murphy, LLP
                                                                       366 E. Broad Street
                                                                       Columbus, OH 43215-3819

APPEARANCE FOR DISPUTANTS                  Scott D. Eickelberger, Esq.
DRS. ANDREW & ELIZABETH STIEGLER:      Kincaid, Taylor & Geyer
                                                                       P.O. Box 1030
                                                                       Zanesville, OH 43702-1030

INITIAL DECISION

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 Silva Chiropractic, Inc., and/or Stiegler Chiropractic, Inc., at P.O. Box 8140, Zanesville, Ohio 43702-8140. The mail is currently being held by the Zanesville Postmaster.

Both parties have filed sworn statements, as required by 39 C.F.R. §965.5. The following findings of fact are based on all the material submitted by the parties, including material forwarded by the United States Postal Service Law Department, Philadelphia Office.

1. Dr. James Silva, a chiropractor, practiced for many years under the name Silva Chiropractic, Inc., at 1927 Maysville Avenue in Zanesville, Ohio. In 1993 he opened P.O. Box 8140 in the corporate name at the Zanesville Post Office.

2. On April 27, 1998, Dr. Silva accepted a purchase offer from Drs. Andrew and Elizabeth Stiegler, both chiropractors, and all three parties signed the "Offer to Purchase," which states that the Stieglers "Offer to Purchase Silva Chiropractic, Inc." The parties also signed an "Agreement for Purchase and Sale of Assets and Real Property." In the preamble to the Agreement, it states that Dr. Silva is "willing to sell and assign to Purchaser all the assets, properties, and rights used in the business (the "Assets") and the premises." There is no specific mention in the Agreement of the post office box.

3. The sale closed on June 10, 1998. Title to all transferred property passed from Dr. Silva to the Stieglers on that date. The Agreement listed property to be transferred in Section 2. Personal Property in §2.1 included "tangible assets," such as equipment and furniture, "books and records related to the assets," "goodwill of the Business," and "copies of all employee and patient files and records." Under Excluded Assets in §2.2 is found, "All of said Sellers accounts receivable."

4. Section 2.3 is titled Accounts Receivable, and includes the following pertinent provisions:

(a) Seller shall give up to the buyer the first three hundred thousand dollars in accounts receivable generated prior to the date of closing . . . Seller, at his own expense, shall be responsible for the collection of all accounts receivable generated after the first three hundred thousand dollars are collected . . ..

(b). . . Seller shall retain title to such accounts receivable, but Purchaser shall collect all such receivables for Seller through Purchaser's office. Purchaser shall be entitled to retain the first $300,000.00 of Seller's accounts receivable which Purchaser collects. Purchaser shall promptly deliver to Seller all accounts receivable collected by Purchaser thereafter, . . .During the time that Purchaser is collecting accounts receivable on behalf of Seller, Seller shall have the right at all reasonable times to inspect the books and records of Purchaser. . . . Purchaser shall continue to collect accounts receivable of Seller pursuant to the terms and conditions described herein until June 1, 1999 at which time all uncollected accounts receivable of Seller shall be surrendered to Seller and Seller shall be entitled to take any action he deems necessary to collect the outstanding accounts receivable.

5. Under a Covenant not to compete, §9.2 of the Agreement, Dr. Silva agreed not to engage in any chiropractic practice or business within ten miles.

6. On or about June 24, 1998, Dr. Silva signed a form titled, "Consent For Use Of Similar Name," giving the Stieglers the right to use the name Silva Chiropractic, and the Stieglers filed a Trade Name Registration with the State of Ohio for the name Silva Chiropractic.

7. It is unclear precisely when, or how, this mail dispute arose, but on October 15, 1999, Dr. Silva's attorney wrote to the Zanesville Post Office, directing that mail addressed to Dr. Silva or to Silva Chiropractic at Box 8140 "must be placed in that post office box and no other."

Dr. Silva's position is that the sale agreement transferred only the assets of his corporation, not the corporation itself, that Silva Chiropractic, Inc. still exists and that he is the president of it. He also argues that the Agreement did not transfer Box 8140 to the Stieglers. He also states that the Stieglers have always had their own post office box (#8170), and therefore, any invoices or other correspondence they have sent out should have directed replies to their own box. Dr. Silva also argues that a current dispute over an accounting of the collection of accounts receivable has no bearing on this mail dispute.

The Stieglers argue that P.O. Box 8140 was one of the assets they purchased and, therefore, Dr. Silva's use of that box should be terminated.

The Agreement does not provide that Box 8140 was an "asset" that was purchased by the Stieglers. However, it is clear from the Agreement that Dr. Silva ceased to operate a chiropractic practice as of June 1998, and that the Stieglers have taken over his practice. The Stieglers also acquired the right to use the name "Silva Chiropractic," and Dr. Silva agreed not to compete. It is likely, therefore, that most of the mail addressed to Silva Chiropractic, as well as to Stiegler Chiropractic, is intended for those who are operating the business. In addition, the Agreement provided that, even though Dr. Silva retained title to accounts receivable the Stieglers would collect all such accounts receivable through June 1999. To do that, one must assume that mail addressed to Silva Chiropractic would be delivered to them. Section 2.3(b) of the Agreement, quoted in Finding of Fact #4, leads to the conclusion that, when the parties entered into the agreement, it was their intention that the Stieglers would collect all the mail and distribute the accounts receivable in accordance with the terms of the Agreement. It is apparent that this mail dispute was precipitated by a disagreement over how the accounts receivable are being handled, but such matters are not to be resolved as part of a mail dispute. Based on the terms of the Agreement, and primarily the fact that the Stieglers have been operating under both names, Silva Chiropractic and Stiegler Chiropractic, since June 1998, the Stieglers have a greater claim to delivery of the mail.

This decision deals only with delivery of the mail. It does not determine ownership of the contents of the mail, it does not determine who is entitled to use Box 8140, nor does it attempt to resolve any underlying disputes between the parties. If the Stieglers receive any mail that is intended for Dr. Silva it is their responsibility to forward that mail. If either party obtains a court order that directs 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.

Bruce R. Houston
Chief Administrative Law Judge

TO THE POSTMASTER AT: ZANESVILLE, OH 43701-9998

                                     RE: Mail Dispute Between

                                            DR. JAMES AND MRS. DIANA SILVA
                                                        and
                                            DRS. ANDREW AND ELIZABETH STIEGLER

                                            P.S. Docket No. MD 99-494

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

Silva Chiropractic, Inc., and/or
Stiegler Chiropractic, Inc.
P.O. Box 8140
Zanesville, OH 43702-8140

shall be delivered as directed by Drs. Andrew and Elizabeth Stiegler.

Judicial Officer

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