In the Matter of a Mail Dispute
Between

BARBARA L. DOUGHERTY, INC.
BARBARA L. DOUGHERTY

and

CAROLYN B. PROEBER                             P.S. Docket No. MD 01-27

APPEARANCE FOR DISPUTANT                Stephen M. Hearne, Esq.
     BARBARA L. DOUGHERTY, INC.          Akman & Associates, PC
     and BARBARA L. DOUGHERTY:          105 W. Main Street
                                                                   Salisbury, MD 21801-4904

APPEARANCE FOR DISPUTANT                Carolyn B. Proeber
    CAROLYN B. PROEBER:                        1805 W. Clear Lake Drive
                                                                   Salisbury, MD 21804-1969

This mail dispute has been docketed pursuant to Postal Operations Manual (POM 8, July 16, 1998 (with Revisions through November 30, 2000)), 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 ART CALENDAR, at P.O. Box 199, Upper Fairmount, MD 21867-0199, and 27528 Fairmount Road, Upper Fairmount, MD 21867, and 27528 Fairmount Road, Westover, MD 21871-4102. The postmasters at Upper Fairmount and Westover are currently holding the mail.

Both parties filed sworn statements, as required by 39 C.F.R. §965.5, along with supporting documents, and both also filed replies, pursuant to 39 C.F.R. §965.6. The following findings of fact are based on all the material submitted by the parties, including the material forwarded by the United States Postal Service Law Department, Mid-Atlantic Office.

1. Carolyn B. Proeber was the original owner and publisher of a magazine called "Art Calendar." She sold it to Barbara L. Dougherty, Inc., a Maryland corporation, in January 1997. Art Calendar is a monthly magazine containing information about art shows, related events, and other matters of interest to artists. (Dougherty affidavit; Proeber affidavit).

2. On January 10, 1997, Barbara L. Dougherty, Inc., entered into a Security Agreement with Peninsula Bank, whereby the bank acquired "a security interest in the collateral described [in the Agreement]." The Agreement described the collateral as including "inventory," "contract rights," "accounts," "general intangibles," and "all equipment," with a further description of each category. "General Intangibles" included "goodwill, literary rights, rights to performance, copyrights, trademarks and patents." In the Agreement, and in some other documents during the time Ms. Dougherty ran the business, the business was referred to as "Barbara L. Dougherty, Inc., t/a Art Calendar." (Security Agreement, attached to Proeber affidavit; Dougherty affidavit, Exhibits A-F).

3. Barbara L. Dougherty, Inc., published Art Calendar until late 2000, when Ms. Dougherty filed for personal bankruptcy. The magazine's mailing address during this time was P.O. Box 199, Upper Fairmount, MD 21867-0199. Peninsula Bank foreclosed on their loan and, on December 20, 2000, conducted a sale of the collateral in which it held a security interest. The purchaser was Chesapeake Bay Realists, Ltd., a Maryland corporation of which Carolyn B. Proeber is president. (Dougherty affidavit; Proeber affidavit; Exhibits B, C, and D, attached to Proeber affidavit).

4. The Bill of Sale and Assignment, signed by Ms. Proeber and a bank representative, states that the bank "took possession of and sold at a public sale on December 20, 2000 the property and collateral encumbered by the Security Agreement." In a subsequent paragraph, the Bill of Sale listed the property sold, including:

Subscription List for the business known as "The Art
Calendar"
Registered Trade Name rights to the business
known as "The Art Calendar"

The Bill of Sale then listed several specific pieces of equipment, monographs, and books. (Proeber affidavit, Exhibit B).

5. Ms. Proeber's company began publishing Art Calendar in January 2001, using P.O. Box 2675, Salisbury, MD 21802 as its mailing address. Ms. Dougherty's company does not presently publish any similar magazine. On December 20, 2000, after the foreclosure sale, Ms. Proeber submitted three change-of-address orders (PS Form 3575), directing that mail addressed to Art Calendar at the three disputed addresses be forwarded to P.O. Box 2675. Ms. Dougherty protested, and this mail dispute arose.¹  (Dougherty affidavit; Proeber affidavit; two copies of Art Calendar, attached to Proeber affidavit; Law Department submission).

Ms. Dougherty argues that the only thing purchased by Chesapeake Bay Realists, Ltd. at the foreclosure sale, in addition to equipment and other tangible property, was the right to use the trade name, "Art Calendar." She argues that Chesapeake Bay did not purchase her magazine and has no ownership interest in the former magazine, and that Barbara L. Dougherty, Inc., and Art Calendar, Inc., are still existing corporations in which Ms. Proeber owns no stock or any other interest.²   She also states that most of the mail addressed to P.O. Box 199 is not related to Ms. Proeber's magazine, but is addressed to "Art Calendar," because that is the name Barbara L. Dougherty, Inc., was known by. Finally, she argues that Ms. Proeber's new magazine has its own mailing address and has never had any connection to P.O. Box 199.

Ms. Proeber argues that she purchased the exclusive rights to the trade name "Art Calendar," and the subscriber list, for the purpose of continuing publication of the magazine and that she has done so, beginning in January 2001. Accordingly, she contends that she is entitled to mail addressed to the magazine. She disputes Ms. Dougherty's assertion that most of the mail addressed to Art Calendar is

intended for Barbara L. Dougherty, Inc. In the material she has filed in this case, Ms. Proeber has made it clear that she makes no claim to any mail other than that addressed to "Art Calendar." She does not claim mail addressed to Barbara L. Dougherty or Barbara L. Dougherty, Inc., even if the address includes "t/a Art Calendar" or "Art Calendar, Inc." Nor does she claim any other mail addressed to P.O. Box 199.

A primary objective of the rules used to resolve mail disputes is that mail should be delivered consistent with the intent of the senders. In this case, each party argues that she is the intended recipient of the disputed mail. It is likely that each is the intended recipient of some of the mail addressed to Art Calendar, but Ms. Proeber has the stronger claim.

The evidence does not support Ms. Dougherty's argument that the current magazine is an entirely new entity, unrelated to the magazine of the same name that she published previously. There may be some ambiguity in the Bill of Sale, but there is no doubt that Chesapeake Bay Realists, by purchasing the trade name, the subscriber list, and the goodwill connected to the magazine called "Art Calendar," acquired an interest in serving that magazine's current customers as well as future customers. Even though Ms. Proeber's company immediately began using its own mailing address, it is likely that mail that has been, and for a time may continue to be, addressed to Art Calendar at P.O. Box 199, deals with subscriptions, advertising, and magazine content. Such mail is intended for the company that is now publishing the magazine.

This decision deals only with delivery of the mail. It does not attempt to decide underlying financial disputes or 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. If either party receives mail that is clearly intended for the other it is their responsibility to forward that mail.

The Judicial Officer should issue an Order to the Fairmount and Westover Postmasters directing that the disputed mail, i.e., mail addressed only to "Art Calendar," be delivered as directed by Carolyn B. Proeber.

Bruce R. Houston
Chief Administrative Law Judge

¹  Although the 27528 Fairmount Road address was formerly listed in the magazine as the address of Barbara L. Dougherty, Inc., it appears that no mail is actually delivered to that address, so the dispute here is focused on P.O. Box 199.

²  Art Calendar, Inc., was formed in February 2000. (Proeber affidavit, Ex. G).