In the Matter of a Mail Dispute Between

PATRICK DWYER
and
MICHAEL A. BARLOW
P.S. Docket No. MD 04-82

APPEARANCE FOR DISPUTANT PATRICK DWYER:
Patrick Dwyer
3230 Somerset Drive
Jeffersonton, VA 22724-1783

APPEARANCE FOR DISPUTANT MICHAEL BARLOW:
Michael Barlow
34 Casey Lane
Madison, VA  22727-2830

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) 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 Dynamic Applications and Technology Associates Systems, Inc., or DATA Systems, Inc., at P.O. Box 99, Madison, VA 22727-0099.  The Madison Postmaster is currently holding the mail.

            Neither party filed a sworn written statement, as required by the Rules of Practice, 39 C.F.R. §965.5, but both filed detailed written statements, accompanied by other supporting documents.  Neither filed rebuttal, as permitted by 39 C.F.R. §965.6.  The following findings of fact are based on all the material submitted by the parties, including that forwarded by the United States Postal Service Law Department, Mid-Atlantic Office.

FINDINGS OF FACT

            1.  In December 2003, Patrick Dwyer and Michael Barlow formed a corporation named Dynamic Applications and Technology Associates Systems, Inc.  Mr. Dwyer was President and Mr. Barlow was Vice-President.  The business address was 1271 North Seminole Trail, Madison, Virginia.  (Dwyer statement; Barlow statement; various documents signed by Dwyer as President; Certificate of Incorporation, receipt and tax certificate from State of Virginia, attached to Dwyer statement).

            2.  In various documents attached to the statements of both parties, the corporation is also referred to as DATA Systems, Inc.  At some time, Mr. Dwyer completed a PS Form 1093, Application for Post Office Box Service, and rented

P. O. Box 99 in the name “DATA Systems.”  (Dwyer statement and attached Form 1093).

            3.  Both disputants were also involved in other related businesses of various names, either together or separately.  (Dwyer statement; Barlow statement).

            4.  In early 2004, the parties became involved in some disagreements over the operation of Dynamic Applications and Technology Associates Systems, Inc.  On April 30, 2004, Mr. Dwyer purported to dissolve the corporation.  The record is unclear what legal procedures, if any, were followed in doing this.  He then began operating a business, called Dynamic Applications, out of his home at 3230 Somerset Drive, Jeffersonton, VA 22724.  (Barlow statement; Dwyer statement; Exhibit N, p. 4, and Exhibit O to Dwyer statement).

            5.  On May 1, 2004, Mr. Dwyer submitted a PS Form 3575, Change of Address, to the Madison, Virginia Post Office, directing that mail addressed to DATA Systems, Inc., at P.O. Box 99 be forwarded to 3230 Somerset Drive.  (Form 3575 attached to Law Department forwarding letter).

            6.  On May 7, 2004, Mr. Barlow purported to create two new corporations with the same names that were previously used, Dynamic Applications and Technology Associates Systems, Inc., and DATA Systems, Inc.  Shortly thereafter, Mr. Barlow protested Mr. Dwyer’s change of address order and this mail dispute arose.  (Dwyer statement; Barlow statement, with Certificates of Incorporation attached).

            7.  POM Section 614.1, provides:

All mail addressed to a governmental or nongovernmental organization (including but not limited to corporations, firms, sole proprietorships, partnerships, joint ventures, and associations) . . . at the address of the organization is delivered to the organization. . . .  If disagreement arises about where any such mail should be delivered, it must be delivered according to the order of the organization’s president or equivalent official.[1]

 

DECISION

            As often happens in cases of this nature, each party accuses the other of telling various untruths and engaging in deceitful practices, but such allegations are not helpful in resolving the mail dispute.  Each now claims to be operating businesses independent of each other, but using the same or very similar names.

             A general rule in mail disputes when two entities use the same, or confusingly similar, names is that mail will be delivered to the entity most likely intended by the senders.  That rule is not useful here because it cannot be determined from this record where any senders intend their mail to be delivered.

            Section 614.1, quoted above, governs this case.  The parties do not agree on many things, but both agree that Mr. Dwyer was the president when the original corporation, Dynamic Applications and Technology Associates Systems, Inc., was created.  Although Mr. Barlow claims to be the president of the “new” Dynamic Applications and Technology Associates Systems, Inc., there is nothing to demonstrate that Mr. Dwyer was lawfully removed as president, or that the original corporation no longer exists.  Therefore, Mr. Dwyer is entitled to direct delivery of the disputed mail.

            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.[2]  POM §616.3.  If Mr. Dwyer receives mail that is intended for Mr. Barlow personally it is his responsibility to forward that mail.

            The Judicial Officer should issue an Order to the Madison, Virginia Postmaster that mail addressed to Dynamic Applications and Technology Associates Systems, Inc., or DATA Systems, Inc., at P.O. Box 99, Madison, VA 22727-0099, be delivered as directed by Patrick Dwyer.

Bruce R. Houston
Chief Administrative Law Judge

[1] Similar language appears at Domestic Mail Manual (DMM), Issue 58, Revised through June 10, 2004, Section D042.4.1.

[2]  After the time for rebuttal expired, Mr. Barlow filed a copy of a Bill of Complaint that had been filed in the Circuit Court of Madison County, Virginia, a Settlement Agreement resolving that Bill of Complaint, dated July 8, 2004, and a Decree of Dismissal based on the settlement, apparently signed by a judge on July 14, 2004.  The named parties on the Bill of Complaint are Christopher Conklin and DATA Systems, Inc. v. Dynamic Applications and Technology Associates Systems, Inc.  Mr. Conklin is referred to in Mr. Barlow’s statement (See Finding #6) as his co-director in the two corporations he founded on May 7, 2004.  Because Mr. Dwyer was not a party to the Circuit Court case, and because the judge’s dismissal order did not direct delivery of mail, the settlement and dismissal of that case carry no weight in resolving this mail dispute.