In the Matter of a Mail Dispute Between

ANTHONY MCGOWAN
and
STEVE SAND

P.S. Docket No.  MD 06-120

APPEARANCE FOR DISPUTANT ANTHONY MCGOWAN:
Anthony McGowan

APPEARANCE FOR DISPUTANT STEVE SAND:
Cheryl P. Baraty, Esq.

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 Dive USA at 134 North Main Street, Thiensville, WI 53092-1606.  The Thiensville Postmaster is currently holding the mail.

            Mr. Sand filed a sworn written statement, as required by the Rules of Practice, 39 C.F.R. §965.5, along with some supporting documents.  Mr. McGowan filed a notarized letter, along with some supporting documents.  The following findings of fact are based on all the material submitted by the parties.

FINDINGS OF FACT

            1.  For some time before April 5, 2006, Anthony McGowan owned and operated a business known as Dive USA at 134 North Main Street in Thiensville, Wisconsin.  (McGowan letter; Sand affidavit).

            2.  In late 2005 and early 2006, Mr. McGowan and Steven A. Sand began negotiating and preparing for a sale of Dive USA to Mr. Sand, doing business as Sea N’ Sand Scuba, LLC.  On March 17, 2006, Mr. Sand signed a form titled “Offer to Purchase – Business Without Real Estate,” whereby Sea N’ Sand Scuba, LLC offered to purchase “the business known as Dive USA.”  (McGowan letter; Sand affidavit; Offer to Purchase attached to Law Department forwarding letter, and to Sand affidavit).

            3.  On April 5, 2006, Mr. McGowan signed as seller, accepting the offer.  The contract stated that the purchase price included “all goodwill, stock-in-trade, accounts receivable and business personal property as defined at lines 83-87.”  Lines 83-87 on the form stated that “Business personal property” includes “furniture, trade fixtures and equipment, tools used in business, telephone numbers and listings, if transferable, customer lists, trade names, business records, . . ..”  The contract makes no specific mention of the name “Dive USA” as being purchased by the buyer or retained by the seller.  (Offer to Purchase attached to Law Department forwarding letter, and to Sand affidavit).

            4.  Since April 5, 2006, Mr. Sand has been operating the business at 134 North Main Street and a sign over the store still says “Dive USA.”  For business correspondence and invoices, he uses “Sea N’ Sand Scuba LLC f/n/a [sic] Dive USA.”  (Sand affidavit).

            5.  After the sale, Mr. McGowan continued to be involved in the diving business, using the name “Dive USA Consulting Services,” at his Mequon, Wisconsin address.  (McGowan letter; Sand affidavit).

            6.  Sometime while the sale was pending, apparently in March 2006, Mr. McGowan submitted a change-of-address form to the Thiensville Post Office, directing that mail addressed to him and/or to the name “Dive USA” at 134 North Main Street be forwarded to him at 11253 N. Wauwatosa Road, Mequon, WI 53097.  Mr. Sand protested to the post office, sometime in April or May 2006, stating that he now owned Dive USA and that Dive USA mail should be delivered as addressed.  The post office complied and Mr. McGowan renewed his request that the mail be forwarded.  This mail dispute formally arose following a July 1, 2006 letter to the postmaster from Mr. Sand’s attorney.^[1]  (McGowan letter; Sand affidavit, Baraty April 17, 2006 letter attached as Exhibit B; Baraty July 1, 2006 letter attached to Law Department forwarding letter).

DECISION

            As is often the case in disputes of this nature, there are underlying financial disputes between the parties.  In this case, each party accuses the other of violating their agreement and engaging in illegal activity, and there is a specific disagreement over which party is entitled to a check for work performed for the Thiensville Fire Department.  Our function is not to resolve those disputes, but only to determine how the mail should be delivered.

            Mr. McGowan contends that the parties’ agreement included his retention of the right to use the name Dive USA, and that Mr. Sand had no objection to that. 

            Mr. Sand says this is not true and argues that the language of the contract speaks for itself, i.e. that Sea N’ Sand Scuba LLC purchased the entire business and that Mr. McGowan retained no right to the name.

            A primary purpose of Postal Service rules for resolving mail disputes is that mail be delivered in accordance with the intent of the senders.  We have no specific evidence of any sender’s intent here, but Mr. McGowan uses his Mequon address for his business and Mr. Sand has been operating the business at 134 North Main Street in Thiensville since April 2006.  It appears that the post office did not begin holding the mail until sometime in June.  It is likely, therefore, that most of the mail addressed to 134 North Main Street since then is intended for Mr. Sand’s business.  Further, the language of the contract quoted above (see Findings #2 and 3), most specifically the term “trade names” included as business property being purchased, suggests that the right to use the name Dive USA was conveyed to the buyer.  In the absence of any persuasive evidence from Mr. McGowan that he retained an exclusive right to the name, the disputed mail should be delivered to Mr. Sand.

            This decision deals only with delivery of the mail.  It does not determine ownership of the contents of the mail and does not attempt to resolve underlying financial disputes, or any other disputes between the parties.  If Mr. Sand receives mail that is intended for Mr. McGowan, it is his responsibility to forward that mail.  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 Thiensville Postmaster that the disputed mail should be delivered as directed by Steven Sand.

Bruce R. Houston
Chief Administrative Law Judge

[1]  Neither Mr. McGowan’s change-of-address form, nor any documents recording either party’s instructions to the post office are included in the case file.  Apparently some of these communications were verbal only.