In the Matter of a Mail Dispute Between

CHARLES DINARDO
and
SHERRYL KOONTZ
P.S. Docket No.  MD 05-35

APPEARANCE FOR DISPUTANT CHARLES DINARDO:
Bradley S. Dornish, Esq.
1207 5th Avenue
Pittsburgh, PA  15219-6211

APPEARANCE FOR DISPUTANT SHERRYL KOONTZ:
Frederick A. Sproull, Esq.
445 Fort Pitt Boulevard, Suite LL500
Pittsburgh, PA  15219-1358

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 Hair Loss Clinic, Hair Loss Control, Hair Loss Center, and/or Hair Clinic, at 7170 Steubenville Pike, Oakdale, PA 15071.  The Oakdale Postmaster is currently holding the mail.

            Both parties filed sworn written statements, as required by the Rules of Practice, 39 C.F.R. §965.5, along with other documents.[1]  Ms. Koontz’s sworn statement was filed in rebuttal, in accordance with 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, Philadelphia Field Office.

FINDINGS OF FACT

            1.  On December 2, 2003, Charles and Charlotte DiNardo, then the owners of the business known as Hair Loss Clinic, Inc., entered into an installment sales agreement with Ms. Koontz as purchaser.  (Dornish statement; Koontz rebuttal statement).

            2.  Ms. Koontz immediately took possession of the premises at 7170 Steubenville Pike and began operating the business.  On February 1, 2004, Ms. Koontz (“Borrower”) signed a Promissory Note and a Loan and Security Agreement in favor of the DiNardos, whereby she agreed to pay a specified amount of principal and interest each month for a term of five years.  As security for the loan, or extension of credit, the DiNardos (“Lender”) were given a continuing lien and security interest in all goods, products, accounts, and equipment, etc.  (Dornish statement; Koontz rebuttal statement; Loan and Security Agreement attached to Dornish statement; Promissory Note attached to Koontz original submission).

            3.  In the event of default by Borrower, the Security Agreement gives Lender the right to enter the premises and take possession of the collateral.  (Agreement, p. 7).

            4.  The parties also entered into a Lease Agreement on February 1, 2004, for the premises at 7170 Steubenville Pike, the DiNardos as “Landlord,” and Ms. Koontz as “Tenant.”  The term was for five years, with rental payments due monthly.  In the event of default by Tenant, the Lease gives Landlord the right to re-enter and take possession of the premises.  (Lease Agreement attached to Koontz original submission).

            5.  On February 6, 2004, the parties executed an Addendum to the Asset Purchase Agreement.  Part of the Addendum was that Charlotte DiNardo would continue to work part-time in the business for one year, with additional work in the second year at Purchaser’s option.  Mrs. DiNardo’s role, in part, was to train Purchaser and her employees.  (Addendum attached to Koontz original submission).

            6.  On November 29, 2004, the DiNardos alleged that Ms. Koontz was in default on the purchase agreement and the DiNardos re-took possession of the business premises at 7170 Steubenville Pike.[2] Since that date, the DiNardos have had exclusive possession of the premises and have continued to operate the business.  Also on November 29, 2004, Ms. Koontz submitted a change-of-address form to the Oakdale Post Office, directing that mail addressed to “Hair Loss Clinic” and “Hair Clinic” at 7170 Steubenville Pike, be forwarded to her at 608 Blueberry Lane, Monroeville, PA 15146.  This change of address was honored by the post office until February 18, 2005, when Mr. DiNardo complained and this mail dispute arose.  (Dornish statement; Law Department forwarding letter).

DECISION

            Mr. DiNardo’s claim to the mail is that Ms. Koontz defaulted on the loan and he rightfully took back the premises in accordance with the Loan and Security Agreement, and that he is now operating the business.  Ms. Koontz’s claim is that she is still the lawful owner of the business, and that the DiNardo’s are in default for various reasons, including failure to provide the required training as required by the February 6, 2004 Addendum.

            One of the principles governing resolution of mail disputes is that mail should be delivered as intended by the senders.  In this case there is no direct evidence of any sender’s intent, but the fact that the DiNardos have been operating the business at 7170 Steubenville Pike since November 29, 2004 makes it likely that current senders of mail would intend for them to receive it.

            Further, in her reply to Mr. Dornish’s statement, Ms. Koontz does not dispute his assertion that she defaulted on the loan.  Her reply is in the nature of a counterclaim against the DiNardos.  The fact that the DiNardos are actually running the business, plus the fact that it appears that they acted in accordance with the Loan and Security Agreement, make Mr. DiNardo’s claim to the disputed mail more persuasive.

            This decision deals only with delivery of the mail.  It does not attempt to resolve any underlying disputes between the parties.  If Mr. DiNardo receives mail that is intended for Ms. Koontz, it is his responsibility to forward that mail.  It is not clear whether there is any pending legal action over the competing default claims, but 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 to the Oakdale, Pennsylvania Postmaster that the disputed mail should be delivered as directed by Charles DiNardo.

                                                                                    Bruce R. Houston
                                                                                    Chief Administrative Law Judge

[1] Mr. Dornish, attorney for Mr. DiNardo, filed his own sworn statement on behalf of Mr. DiNardo.

[2] The DiNardos have not specifically alleged that Ms. Koontz failed to pay rent.