In the Matter of a Mail Dispute Between

JOHN VON TERZIAN
and
LORI ANN RUDEGEAIR

P.S. Docket No. MD 08-197

APPEARANCE FOR DISPUTANT
JOHN VON TERZIAN:
John von Terzian

APPEARANCE FOR DISPUTANT
LORI ANN RUDEGEAIR:
Lori Ann Rudegeair

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM Issue 9, July 2002) § 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 LeClaire, Inc.; Bremer Lloyd, Ltd.; Organically Beautiful, Inc.; or LeClaire & Bayot, Inc., all at 501 N. Cannon Ave., Lansdale, PA 19446-1815.  The Lansdale Post Office is holding the mail.

             Neither party filed a sworn written statement, as required by the Rules of Practice, 39 C.F.R. §965.5.  However, the parties previously submitted documents to the post office and to Postal Service counsel in Philadelphia, and those documents have been sent to this office.  Additionally, Disputant John von Terzian submitted numerous letters setting forth his position, and this office has received additional documents from the parties.  The following findings of fact are based on all of the submissions.[1]

 FINDINGS OF FACT

            1.  On April 5, 2007, Organically Beautiful, Inc., was incorporated as a Delaware corporation (April 9, 2007 letter from Agents and Corporations, Inc.; Certificate of Incorporation).

             2.   Also on April 5, 2007, the incorporator conducted a meeting at which By-Laws for the company were adopted, and Ms. Rudegeair was elected as the sole director (Minutes of Meeting of Incorporator; Ballot for Director).

             3.  The By-Laws provided that one director constituted the whole board and that the “officers of the corporation shall be chosen by the Board of Directors.”  (By-Laws Article III, Section 1; Article V, Section 1).

             4.  On April 5, 2007, Ms. Rudegeair was nominated to be president of the company (Unanimous Action of Sole Director).

             5.  Mr. von Terzian and Ms. Rudegeair each owned 50 per cent of the stock of Organically Beautiful, Inc. (September 24, 2007 Stock Purchase Agreement; Letter dated June 16, 2008, from Mr. von Terzian).

            6.  LeClaire, Inc.; Bremer Lloyd, Ltd.; and LeClaire & Bayot Inc. are companies owned by Mr. von Terzian.  He operated those businesses at 501 N. Cannon Ave., Lansdale, PA 19446-1815, for a number of years before this mail dispute arose.  (Letter dated June 16, 2008, from Mr. von Terzian).

             7.  Mr. von Terzian had been responsible for the operation of Organically Beautiful, Inc., at 501 N. Cannon Ave., Lansdale, PA 19446-1815, including paying bills and preparing the company taxes.  The company ceased operations in April 2008, but Mr. von Terzian remains responsible for handling the affairs of the company.  (Letter dated May 7, 2008, from Ms. Rudegeair to Mr. von Terzian; Letter dated June 3, 2008, from Mr. von Terzian; Letter dated June 16, 2008, from Mr. von Terzian; email from Mr. von Terzian to the Postal Service Office of Inspector General).

             8.  Ms. Rudegeair submitted a change of address order to the Lansdale Post Office requesting that the mail for all of the above companies be forwarded to her home.  Mr. von Terzian objected to the request, and asked that the disputed mail be delivered as addressed.  The Lansdale Post Office Officer-in-Charge withheld delivery of the disputed mail.  (Letters dated June 4, 2008, from the Lansdale Officer-in-Charge; Letter dated June 16, 2008, from Mr. von Terzian).

             9.  Section 614.1 of the Postal Service Postal Operations Manual provides, in part,

 “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.”

 DECISION

            There is no direct evidence that Ms. Rudegeair was appointed or elected president of Organically Beautiful, Inc.  However, at the inception of the company, she was the sole director and had authority to appoint the officers of the company (Findings 1-3), and corporate documents reflect that she was nominated as president (Finding 4).  There being no evidence to the contrary, these facts would support a conclusion that she was the “president or equivalent official” of the company.  Generally, under the regulation quoted above (Finding 9), Ms. Rudegeair would be entitled to direct delivery of the mail addressed to Organically Beautiful, Inc.

             However, Mr. von Terzian has demonstrated that he operated the business of Organically Beautiful, Inc., before its demise and that he is responsible for conducting any remaining affairs of the business (Finding 7).  A primary consideration in resolving mail disputes is to ascertain where those sending the mail would prefer that it be delivered.  See William K. Blocher and Presage Corporation, P.S. Docket No. MD 97-154 (I.D., June 26, 1997).  Mr. von Terzian now conducts any remaining business of the defunct company at the disputed address (Finding 7), and it is likely that anyone who had business with Organically Beautiful, Inc., in the past or who has current business with the company would wish the mail to be delivered to that address.  Accordingly, mail addressed to Organically Beautiful, Inc., at 501 N. Cannon Ave., Lansdale, PA 19446-1815, should be delivered as addressed.

             Mr. von Terzian has demonstrated that he has owned and operated the other companies for years, and Ms. Rudegeair has shown no ownership or other connection to them.  The record includes a document titled State of Delaware Certificate of Merger of Foreign Corporation Into a Domestic Corporation, signed by Ms. Rudegeair, that recites that Bremer Lloyd, LeClair & Bayot, and LeClaire have been merged into Organically Beautiful by LeClaire, Inc.  However, Mr. von Terzian denies there was a merger, and there is no evidence the Certificate was filed with the State as required by applicable law and no evidence that the constituent corporations formally accepted an agreement of merger.  See 8 Del. C. §252.  Accordingly, under the Postal Operations Manual provision cited above (Finding 9), mail addressed to LeClaire, Inc.; Bremer Lloyd, Ltd.; or LeClaire & Bayot, Inc., should be delivered as addressed.

             This decision deals only with delivery of the mail in dispute.  It does not determine entitlement to the contents of the mail and does not purport to decide any other dispute between the parties.  Additionally, if a court directs delivery of the mail in a different manner, the mail will be delivered according to the court order.[2] The Judicial Officer should issue an Order to the Lansdale Post Office directing that mail addressed to Organically Beautiful, Inc.; LeClaire, Inc.; Bremer Lloyd, Ltd.; or LeClaire & Bayot, Inc., at 501 N. Cannon Ave., Lansdale, PA 19446-1815, be delivered as addressed.

Norman D. Menegat
Administrative Judge

--------------------------------------------------------------------------------

 [1] Mr. von Terzian complains that documents he filed with the Postal Service came into Disputant Lori Rudegeair’s hands.  The rules applicable to resolving mail disputes provide that the Recorder will send all submittals in a mail dispute to the opposing party.  39 C.F.R. §§965.5, 965.6.

 [2] “When the same mail is claimed by different persons, and a court decides to whom delivery should be made, the mail is delivered according to the court order.”  Postal Operations Manual §616.3.