In the Matter of a Mail Dispute Between

MARK MCCOOL

and

PETER A. STILPHEN

P.S. Docket No. MD 02-404

APPEARANCE FOR DISPUTANT MARK MCCOOL:
Mark McCool
5999 South Pointe Blvd., Suite 103
Ft. Myers, FL 33919-3274

APPEARANCE FOR DISPUTANT PETER A. STILPHEN:
Peter A. Stilphen
725 Sunny South Avenue
Boynton Beach, FL 33436-1818

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) (“POM”)) Section 616.21, which requires the chief field counsel to forward certain mail disputes to the Judicial Officer for resolution.  The mail in dispute is that addressed to Coral Sands Travel, Heritage Resorts Management and/or First Discount Travel, all at 5999 South Pointe Boulevard, Suite 103, Ft. Myers, FL 33919-3274.  The Ft. Myers Postmaster is holding the mail. 

           Both parties submitted statements of their position with documents attached.  Mr. Stilphen submitted comments responding to Mr. McCool’s submission.  The following findings of fact are based on the parties’ submissions, as well as the documents they previously filed with the post office and other documentation provided by the post office.

FINDINGS OF FACT

            1.  Mr. Peter Stilphen or his corporation, Heritage Resorts Management, Inc., owned a travel agency in Ft. Myers known as Coral Sands Travel.  Mr. Stilphen operated the agency in space leased by Coral Sands Travel, Inc., at 5999 South Pointe Boulevard, Suite 103, the disputed address, with a term expiring on December 9, 2002.  Mr. Stilphen guaranteed the lease personally.  (Stilphen Submission, Exhibit C (Lease)).

            2.  At some point, the name First Discount Travel was also used in association with operation of the Coral Sands Travel agency.  (Stilphen Statement, paragraph H; McCool Submission, Attachment 19).

            3.  On June 9, 2001, Mr. Stilphen, as president of Heritage Resorts Management, Inc., d/b/a Coral Sands Travel, entered into an Asset Purchase Agreement with TravelWize.com, represented by Mr. Mark McCool, for the sale of all assets and operations of Coral Sands Travel to Travelwize.com (Stilphen, Exhibit A).

            4.  As provided in the Asset Purchase Agreement, TravelWize.com paid Heritage Resorts Management, Inc., $20,000 upon execution of the Agreement.  (McCool, Attachment 2).  Closing of the purchase and payment of the remainder of the purchase price in the stock of TravelWize.com’s parent, CyberWize.com, Inc., would occur only after TravelWize.com took certain other actions.  These included TravelWize.com formally obtaining transfer of Coral Sands’ Airlines Reporting Corporation (“ARC”) certification, assuming the lease for the premises and obtaining necessary permits.  (Stilphen, Exhibit A).

            5.  The Agreement contemplated that TravelWize.com would take over operation of the agency, using the Heritage Resorts Management, Inc. existing ARC identification and corporate bank account.  As of June 2001, TravelWize.com began operating the agency at the disputed address and paying the rent and utilities.  (Stilphen, Exhibit A; McCool, Attachments 4-11).

            6.  When the bond required to maintain the travel agency’s ARC certification expired in November 2001, TravelWize.com obtained a letter of credit to replace it (McCool, Attachments 12, 13).

            7.  Months after the Asset Purchase Agreement was executed, the preconditions to closing (see Finding 4) had still not occurred.  Mr. Stilphen began demanding that TravelWize.com take the steps it had committed to in the Agreement.  (Stilphen, Exhibit A; McCool, Attachments 3, 15-18).

            8.  In February 2002, Mr. Stilphen and a representative of CyberWize.com, TravelWize.com’s parent, met to establish a timeline for accomplishment of the remaining tasks.  As consideration for the previous delays, Cyberwize.com paid Mr. Stilphen $3,000 and promised to pay an additional $2,000 upon closing.  (McCool, Attachment 3).

            9.  The deadlines established at the February meeting were not met, and Mr. Stilphen repeated his complaints about TravelWize.com’s failure to accomplish the transfers it had promised, and demanded that TravelWize.com vacate the premises (Stilphen, Exhibits D, E; McCool, Attachments 19-23).

            10.  On June 17, 2002, Mr. Stilphen submitted a Change of Address form, PS Form 3575, directing that mail for Coral Sands Travel at the disputed address be forwarded to an address in Boynton Beach, Florida (PS Form 3575).

            11.  In letters of June 27 and 28, 2002, TravelWize.com asked the Ft. Myers Post Office to deliver Coral Sands Travel mail as well as Heritage Resorts Management, Inc., mail and mail addressed to First Discount Travel to the disputed address.

            12.  TravelWize.com continues to operate Coral Sands Travel at the disputed address (June 17, 2002 note (O-13)).

DECISION

            A primary objective of the rules used to resolve mail disputes is that mail should be delivered consistent with the intent of the senders.  TravelWize.com having operated the agency under the name Coral Sands Travel for more than a year, it is likely that correspondence addressed to Coral Sands Travel at the disputed address is intended for the operator of the agency, TravelWize.com.  Accordingly, mail addressed to Coral Sands Travel at the disputed address should be delivered as addressed.

            Mail addressed to Heritage Resorts Management, Inc., is on a somewhat different footing.  In the Asset Purchase Agreement, Heritage Resorts Management, Inc., appears as a seller of Coral Sands Travel, and it does not appear that TravelWize.com bought Heritage Resorts Management, Inc., as part of the transaction.  (Findings 3, 4).  Mr. Stilphen contends that Heritage Resorts Management, Inc., is in the business of offering its services to manage condominium associations and is entitled to receive its mail.  However, Mr. Stilphen has not explained why the company would be conducting business using the Coral Sands Travel address more than a year after he turned over the premises to TravelWize.com in what he expected would be a permanent transfer.  Given that Mr. Stilphen permitted TravelWize.com to use the Heritage Resorts Management, Inc. bank account and ARC identification in the conduct of Coral Sands Travel’s business, it is likely that mail addressed to Heritage Resorts Management, Inc., or Heritage Resorts Management at the disputed address is intended for TravelWize.com, the operator of the travel agency at that address.  Accordingly, mail addressed to Heritage Resorts Management, Inc., or Heritage Resorts Management at the disputed address should also be delivered as addressed.

            The parties submitted little evidence regarding First Discount Travel, but its operation appears to be associated with Coral Sands Travel and not with any other enterprise of Mr. Stilphen.  Accordingly, that mail also should be delivered as addressed.

            This decision deals only with delivery of the mail.  It does not attempt to decide underlying financial disputes or any other disputes between the parties.  Notwithstanding his complaints to TravelWize.com and his demand that it vacate the premises (Finding 9), there is no evidence that Mr. Stilphen has taken any legal action to rescind the sale because of the pace at which TravelWize.com has attempted to accomplish the preconditions to closing the Asset Purchase Agreement.  The Postal Service would comply with court direction regarding ownership of the travel business and with a court order regarding delivery of the mail.  POM Section 616.3.  If TravelWize.com receives any mail that is clearly intended for Mr. Stilphen, it is its responsibility to forward that mail.

            The Judicial Officer should issue an Order to the Ft. Myers Postmaster directing that the disputed mail be delivered as addressed.

                                                                                    Norman D. Menegat
                                                                                    Administrative Judge