In the Matter of a Mail Dispute Between

ZOILA APOSTOLIDIS
and
NICK APOSTOLIDIS

P.S. Docket No. MD 10-75

APPEARANCE FOR DISPUTANT
ZOILA APOSTOLIDIS:
William H. Beck, Esq

APPEARANCE FOR DISPUTANT
NICK APOSTOLIDIS:
Nick Apostolidis

INITIAL DECISION

            Mail Dispute MD 10-75 has been docketed pursuant to Postal Operations Manual (POM) § 616.21, under the procedures established at 39 CFR Part 965 to resolve conflicting claims to receive the same mail.  The disputants are Nick Apostolidis and Zoila Apostolidis, who are married but in the process of divorcing.  The mail at issue is that addressed to the business that they have operated as Nick’s Natural Sponges & Loofas, Inc., and Nick’s Natural Sponges and Sharks Teeth.  The contesting parties seek the right to receive mail addressed to those business names at 1482 L&R Industrial Boulevard and at 1496 L&R Industrial Boulevard, Tarpon Springs, Florida.  The Tarpon Springs Postmaster has been directed to hold the mail so addressed. 

FINDINGS OF FACT

            1.         In 1997, Nick’s Natural Sponges & Loofas, Inc. was incorporated in Florida, with Nick Apostolidis as president, sole shareholder, and registered agent (T. Dimitriadis April 13, 2010 letter (Dimitriadis Letter), Attachment C  (articles of incorporation); Nick Apostolidis March 10, 2010 letter).  The corporation also has done business under the name Nick’s Natural Sponges and Sharks Teeth, and has operated at 1482 L&R Industrial Boulevard, Tarpon Springs, Florida (B. Beck, Esq. March 12, 2010 letter (Beck Letter)).

            2.         From 2000 until 2001, annual reports filed on behalf of Nick’s Natural Sponges & Loofas, Inc., identified Nick Apostolidis as president.  In 2002, Nick Apostolidis became ill and his wife, Zoila Apostolidis, handled many administrative functions for the corporation.  However, Nick Apostolidis has not appointed her as president or transferred ownership of the corporation.  Nick Apostolidis remains the sole shareholder (Dimitriadis Letter and Attachment C thereto; Nick Apostolidis March 10, 2010, March 15, 2010, March 22, 2010, March 29, 2010, and April 10, 2010 letters).

            3.         From 2002 to 2010, annual reports filed on behalf of Nick’s Natural Sponges & Loofas, Inc., identified Zoila Apostolidis as president, and were submitted under her actual or electronic signature (Beck Letter, attachments).

            4.         In 2009, the corporation’s federal tax return was signed by Zoila Apostolidis as president (Zoila Apostolidis March 22, 2010 submission, attachment).

            5.         Beginning in December, 2009, the disputants have been in the process of obtaining a divorce (Nick Apostolidis March 10, 2010 letter).  In January, 2010, Zoila Apostolidis moved substantial corporation materials to 1496 L&R Industrial Boulevard, Tarpon Springs, Florida amid their divorce proceedings (Dimitriadis Letter; Nick Apostolidis March 10, 2010 letter).

            6.         The 2010 annual report was amended repeatedly by both parties, each of whom substituted him or herself for each other as president of the corporation (Dimitriadis Letter and Attachment E).

            7.         Nick Apostolidis filed a change of address request to redirect mail addressed to the corporation at the disputed addresses to a post office box which he controls.  Zoila Apostolidis opposes the request.  (Nick Apostolidis January 27, 2010 letter).

            8.         A restraining order, which is being contested, precludes Nick Apostolidis from accessing the business premises at 1496 L&R Industrial Boulevard, Tarpon Springs, Florida (Beck letter, attachment (January 26, 2010 Restraining Order); Dimitriadis Letter and Attachment A thereto).

            9.         In February, 2010, Zoila Apostolidis applied for an occupational license with the city of Tarpon Springs to move the corporation’s location from 1482 L&R Industrial Boulevard to 1496 L&R Industrial Boulevard, Tarpon Springs, Florida.  Nick Apostolidis has opposed that application.  (Nick Apostolidis March 10, 2010 letter).

            10.       In a sworn submission to a local court in connection with a restraining order, Nick Apostolidis attested that he historically has been the main operator and manager of the business, and that Zoila Apostolidis has only been partially involved (Dimitriadis Letter, Attachment A). 

            11.       On March 16, 2010, the Tampa Law Office of the United States Postal Service forwarded this mail dispute to the Judicial Officer.  Thereafter, additional materials transmitted by the parties were forwarded to the Judicial Officer by the Tampa Law Office.  During the course of this proceeding, additional statements and documents have been submitted by or on behalf of Nick Apostolidis.[1]  Zoila Apostolidis has not submitted any additional information.  Neither party has submitted a sworn statement in support of his or her position.

DECISION

            The procedures for resolution of mail disputes require the submission of sworn statements by the disputants to support their claims to the disputed mail.  See 39 CFR § 965.5.  Neither party has submitted the sworn materials required by applicable regulations.  Nonetheless, in order to resolve this dispute so that delivery of the mail may resume, all materials available to me have been considered in this Initial Decision. 

            Where disagreement arises concerning delivery of mail addressed to a corporation, the mail should be delivered according to the order of the organization’s president or equivalent official.  POM § 614.1.  Thus, my task is to determine, based on the incomplete record available to me, which disputant has the superior legal right to be considered president of the corporation.[2]

            It is clear that Nick Apostolidis was the president of the corporation at the time it was incorporated, and was the sole authority to act on the corporation’s behalf (Finding 1).  No document is in the record reflecting that Zoila Apostolidis has been appointed president of the corporation or that Nick Apostolidis has otherwise authorized her to replace him as president (see Finding 2).  Nonetheless, the annual reports[3] filed on behalf of Nick’s Natural Sponges & Loofas, Inc., identified Zoila Apostolidis as president as did the corporation’s 2009 federal tax return (Findings 3-4).  Nick Apostolidis argues that he was unaware that his wife had acted in this manner, but the filings over eight years are indications of a greater role in the company by Zoila Apostolidis than he admits.  Nonetheless, at the time, the disputants were married and understandably worked together operating a business.  In any event, the perhaps tacit acquiescence by Nick Apostolidis for his wife to represent the corporation is not the same as a formal, legal appointment of Zoila Apostolidis as president.  I find that the overall weight of the evidence favors Nick Apostolidis.

            As I stated above, the record does not include an appointment of Zoila Apostolidis as president or any other transfer of authority from Nick Apostolidis to Zoila Apostolidis, which Nick Apostolidis repeatedly and vehemently disclaims (Finding 2).  If Zoila Apostolidis were authorized by Nick Apostolidis to act as president, I would have expected her to have filed documents to that effect.  Further, the only sworn statement in the record supports Nick Apostolidis’ position, as does the letter of Ms. Dimitriadis, albeit a somewhat interested witness (Finding 10).

            I conclude that Nick Apostolidis has demonstrated the legal right to control the mail of the corporation and that Zoila Apostolidis has not effectively rebutted that proof.  As there has not been a satisfactory demonstration that Nick Apostolidis, the original company president, was replaced as president, he remains entitled to direct delivery of the disputed mail.  See Patrick Dwyer and Michael A. Barlow, P.S. Docket No. MD 04-82 (I.D. July 23, 2004), modified, (P.S.D. September 7, 2004).

            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 the underlying disputes between the parties.  Further, 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.  See POM § 616.3. 

            This initial decision therefore recommends that the Judicial Officer issue an order directing that the Tarpon Springs Postmaster allow Nick Apostolidis to direct delivery of the mail addressed to Nick’s Natural Sponges & Loofas, Inc., and Nick’s Natural Sponges and Sharks Teeth, at 1482 L&R Industrial Boulevard and at 1496 L&R Industrial Boulevard, Tarpon Springs, Florida, and to release all previously held mail to him as he directs.

Gary E. Shapiro
Administrative Judge

[1] Apparently, there may be some language barriers affecting this case, with Nick Apostolidis, at least, not being fluent in English.  Further, he has been in the hospital during at least some portions of this dispute, and materials have been submitted by another person on his behalf.  See Dimitriadis letter; Nick Apostolidis March 22, 2010 letter.

[2] Nick Apostolidis suggests that this mail dispute should be delayed until the divorce proceedings address the matter, and that a third party should be appointed to receive the mail in the interim. Such a resolution in the absence of an agreement by the parties, is beyond my authority.  See Dennis J. Bowen and Karen Bucktooth, P.S. Docket No. MD 95-59 (I.D. May 24, 1995); Calstar, LLC and LaSalle Bank National Association, P.S. Docket No. MD 01-49 (I.D. April 9, 2001). 

[3] The battling amendments to the 2010 annual report submitted by each party merely reflect the disparate interests here contested, and do not reliably indicate ownership or the president of the corporation.