In the Matter of a Mail Dispute Between

KENNETH WULWICK

and

MICHAEL PARKOFF

P.S. Docket No. MD 02-441

APPEARANCE FOR DISPUTANT KENNETH WULWICK:
Kenneth Wulwick
11327 Wingfoot Drive
Boynton Beach, FL 33437-1624

APPEARANCE FOR DISPUTANT MICHAEL PARKOFF:
Michael Parkoff
3700 South Ocean Blvd., #1706
Highland Beach, FL 33487-3378

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) Section 616.21.  The case was docketed after a telephone conference in a related Post Office Box termination case (P. S. Docket No. POB 02-402).  Mr. Kenneth Wulwick participated in that telephone conference although he is not a party in POB 02-402, and during the telephone conference it became apparent that a mail dispute still existed.  The mail in dispute is that addressed to Automax USA or Automax Finance at P.O. Box 540265, Lake Worth, FL 33454-0265.  The Lake Worth Postmaster is currently holding the mail.

            Mr. Michael Parkoff filed a sworn statement, as required by 39 C.F.R. §965.5, along with other documents, which included a sworn statement from Tony Cimmino.  Mr. Wulwick filed a letter.  The parties were also informed that all documents filed with the Post Office Box case (POB 02-402) would be considered part of the file in this case.  The following findings of fact are based on the entire record.

FINDINGS OF FACT

            1.  Prior to August 20, 1998, Andrea Parkoff owned 100% of the shares of Automax USA and Automax USA Finance, Inc.[1]  On or about August 20, 1998, Andrea Parkoff entered into a stock exchange agreement with Kenwick Industries, Inc.  Kenwick acquired all the stock of Automax USA and Automax USA Finance, and Kenneth Wulwick became the president of those companies.  (April 26, 2001 Settlement Agreement, attached to Parkoff August 27, 2002 submission as Ex. 5).

            2.  Disputes arose over the obligations and performance of the parties to the above agreement, resulting in a lawsuit and countersuit in the Circuit Court of the Fifteenth Judicial Circuit for Palm Beach County, Florida.  The suit was titled Automax Group, Inc. v. Andrea Parkoff and Michael Parkoff.  The countersuit was titled Andrea Parkoff v. Kenneth Wulwick and several corporate entities.  (April 26, 2001 Settlement Agreement).

            3.  These lawsuits were concluded by a Settlement Agreement and Stipulation for Order, dated April 26, 2001.  The Agreement is signed by Andrea and Michael Parkoff, and by Kenneth Wulwick in several capacities, including as president of Automax USA, Inc., and Automax USA Finance, Inc.  (April 26, 2001 Settlement Agreement).

            4.  On June 16, 1998, Andrea Parkoff completed a PS Form 1093, Application for Post Office Box Service, and was assigned P.O. Box 540265 in Lake Worth, FL.  The box was rented in the names "Parkoff/Automax/Exim."  (Attachment to August 22, 2002 letter from Postal Service attorney, Bobby G. Kirby).

            5.  During the business disputes between the Parkoffs and Mr. Wulwick, a mail dispute also arose over entitlement to mail addressed to various Automax entities at various addresses.  This dispute was resolved, in part, by a decision from Postal Service attorney, Glenn L. Smith, on July 24, 2001.  Mr. Smith determined, based primarily on the April 26, 2001 Settlement Agreement, that Kenneth Wulwick was president of the various Automax entities and as such was entitled to direct the delivery of mail.  In a July 24, 2001 letter to the parties, Mr. Smith declared that the Postal Service would cancel forwarding orders submitted by the Parkoffs and that mail addressed to Automax entities at P.O. Box 7094 in Boca Raton, FL, and at 1752 S. State Road 7 in N. Lauderdale, FL, would be delivered as addressed.  He also declared that mail addressed to Automax entities at 216 North Military Trail in West Palm Beach would be forwarded to 1752 S. State Road 7 in N. Lauderdale, FL.  As for mail addressed to Automax entities at P.O. Box 540265 in Lake Worth, FL however, Mr. Smith was unable to determine who was entitled to that mail.  His letter stated that the post office would continue to hold this mail until the dispute was resolved by a court order or by agreement of the parties.  (Glenn L. Smith letter, July 24, 2001).

            6.  The dispute over P.O. Box 540265 has not been resolved, but mail to that address has been delivered to attorney Donald Thomas, per agreement of the parties.  (Order and Memorandum of Telephone Conference, September 9, 2002). 

            7.  In August 2002, Kenneth Wulwick sold Automax USA, Inc., and Automax USA Finance, Inc., to Tony Cimmino.  (Cimmino affidavit; "Contract and Agreement for Sale and Purchase," attached to Parkoff August 27, 2002 submission as Ex. 1).[2]

            8.  On August 29, 2002, Tony Cimmino signed a document titled, "Compromise and Informal Deposition," in which he stated that Automax USA, Inc., and Automax USA Finance, Inc., authorize the Postal Service to deliver mail addressed to those entities at P.O. Box 540265, Lake Worth, FL to P.O. Box 540265; and authorize Andrea Parkoff to accept all mail so addressed; and assign all rights to P.O. Box 540265 to Andrea Parkoff.  (Attachment to Parkoff September 10, 2002 submission; Cimmino affidavit, September 13, 2002).

DECISION

            The sworn statements submitted by Mr. Parkoff and Mr. Cimmino, when considered along with the other documents that have been filed, are more persuasive than the letter submitted by Mr. Wulwick.  Mr. Cimmino's statement that he purchased Automax USA, Inc., and Automax USA Finance, Inc. from Mr. Wulwick is supported by the language of the "Contract and Agreement for Sale and Purchase," that was signed by Mr. Wulwick.  Mr. Wulwick's only counter to this is his assertion that he had no authority to make this sale, that he was "manipulated" by Tony Cimmino, and that there was no consideration for the sale.  He presented no evidence of his lack of authority or that the contract should be considered unenforceable, and the contract states that the sale was "for consideration."

            Likewise, there is no evidence to contradict Mr. Cimmino's affidavit or the document by which he gave Andrea Parkoff authority to receive the disputed mail at P.O. Box 540265.  As a whole, the evidence of record demonstrates that Mr. Wulwick is no longer president of the Automax companies and therefore has no claim to the disputed mail.

            This decision deals only with delivery of mail.  It does not attempt to resolve any financial, or other, disputes 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 directing that mail addressed to Automax USA or Automax Finance, or close variations of those names, at P.O. Box 540265, Lake Worth, FL 33454-0265 be delivered as directed by Michael Parkoff or Andrea Parkoff.  Although this case was docketed in the name of Michael Parkoff, and Mr. Cimmino's August 29, 2002 document gave authority to Andrea Parkoff, it is clear that the Parkoffs are acting in concert in this case.

                                                                        Bruce R. Houston
                                                                        Chief Administrative Law Judge

     [1] The names Automax Finance and Automax USA Finance are both used in the case file.  There does not appear to be a difference between the two.

     [2] A second, and slightly different, copy of this Contract for Sale is attached to Mr. Parkoff's September 27, 2002 submission.  It bears only Mr. Wulwick's signature.  The first copy bears the signatures of both Mr. Wulwick and Mr. Cimmino.