In the Matter of a Mail Dispute Between

VICTORIA ANN BUNNEY
         and
NORMAN GILBERT, JR.

P.S. Docket No. MD 10-351

APPEARANCE FOR DISPUTANT
VICTORIA ANN BUNNEY:
Victoria Ann Bunney

APPEARANCE FOR DISPUTANT         
NORMAN GILBERT, JR.: 
Norman Gilbert, Jr.

INITIAL DECISION

            Disputants Victoria Ann Bunney and Norman Gilbert, Jr., claim the right to receive mail addressed to their deceased mother, Louise Marie Gilbert, at 12552 John Marshall Highway, Linden, VA 22642-1725.  The resulting Mail Dispute,

           MD 10-351, docketed pursuant to Postal Operations Manual (POM) § 616.21 under the procedures established at 39 CFR Part 965, was referred for resolution to the Judicial Officer of the Unites Stated Postal Service, and subsequently assigned to the undersigned Administrative Judge for an Initial Decision.  The Postmaster of Linden, Virginia has been directed to hold the disputed mail.  By this Initial Decision, I recommend that the Judicial Officer issue an order directing the Linden Postmaster to release the mail to Ms. Bunney.

FINDINGS OF FACT

           1.                  The disputants are the daughter and son of Louise Marie Gilbert, who died on April 4, 2010.  Before her death, Ms. Gilbert resided at 12552 John Marshall Highway, Linden, VA 22642-1725, which is Mr. Gilbert’s present address.  (Affidavit of Victoria Ann Bunney, December 29, 2010 (Bunney Aff.) at p. 2 and Exhibits E, L; Attachments to Referral Letter from Postal Service Law Department, December 14, 2010 (Referral)).  On February 24, 2010, Louise Marie Gilbert appointed both Ms. Bunney and Mr. Gilbert as her attorneys-in-fact, pursuant to a General Power of Attorney (Bunney Aff. Exhibit J).

           2.                  On October 20, 2010, Ms. Bunney filed a change of address request that mail addressed to her deceased mother at 12552 John Marshall Highway, Linden, VA 22642-1725, be forwarded to her residence, at 306 South Harrison Road, Sterling, VA 20164-2720.  However, on October 26, 2010, Mr. Gilbert contested that request, and sought that the mail be delivered as addressed.  (Bunney Aff. at pp. 1-2 and Exhibit J; Attachments to Referral).

           3.                  Ms. Bunney is the executrix of Louise Marie Gilbert’s estate under a  will which was recorded and accepted for probate by the Fauquier County (Virginia) Circuit Court.  Ms. Bunney requires access to mail addressed to her deceased mother in order to administer the estate, and Ms. Bunney has been conducting all business regarding Ms. Gilbert’s estate.  (Bunney Aff. at pp. 1-2 and Exhibits A-B, E-H).  The record does not reflect that Mr. Gilbert contests Ms. Bunney’s status as executrix, and he has recognized Ms. Bunney’s right to fees for managing the estate (see Bunney Aff. Exhibit H, ¶ 7).

           4.                  Counsel for the U.S. Postal Service referred the matter to the Judicial Officer.  The Mail Dispute was docketed on December 17, 2010, and a Notice of Docketing and Submittal Due Date was issued on December 20, 2010.  In accordance with applicable procedures, the Notice of Docketing and Submittal Due Date required submittals by the parties by January 4, 2011.

           5.                  On December 29, 2010 (received on January 3, 2011), Ms. Bunney submitted a sworn affidavit in support of her position, supplemented by twelve tabbed exhibits.  Mr. Gilbert did not submit a sworn statement or any materials in support of his position despite having received the materials in this Mail Dispute.

DECISION

            The procedures for resolution of Mail Disputes require the submission of sworn statements and documents relied upon by the disputants in support of their respective positions.  39 CFR § 965.5.  A party who fails to file the submittal required by § 965.5 may be held in default, and the presiding officer may issue an Initial Decision that mail be delivered to the other party.  39 CFR § 965.7.  Here, Mr. Gilbert failed to submit a sworn statement, or any explanation or document (Finding 5).  This is sufficient to find Mr. Gilbert in default and to rule in favor of Ms. Bunney.  In addition, Ms. Bunney has submitted evidence that persuades me that a decision in her favor is appropriate.

           POM § 612.42 provides that mail addressed to a deceased person may be forwarded to an appointed executor if such a request is made to the post office.  Ms. Bunney has been appointed as executrix of the estate of her mother, the record fails to reflect that Mr. Gilbert contests that status, and Ms. Bunney requested the mail be forwarded to her (Findings 2-3).  Ms. Bunney therefore has proved her right to receive the disputed mail.  See Marilyn T. Smith and Christi Latta, P.S. Docket No. MD 09-7 (I.D. February 18, 2009).

           As Mr. Gilbert has remained silent in this proceeding, I have attempted to discern his arguments from the record.  In that regard, I first note that Mr. Gilbert presently resides at his deceased mother’s address, and postal regulations provide that mail addressed to a deceased person may be delivered as addressed.  POM § 612.41.  However, as mentioned above, postal regulations also provide that mail addressed to a deceased person may be forwarded to an appointed executor, if a request is filed at the post office, as occurred here.  POM § 612.42.  Accordingly, that Mr. Gilbert resides at the former address of his deceased mother does not entitle him to a favorable decision in these circumstances.  See Ronni Portnoy and Sylvia Weiss, P.S. Docket No. MD 05-236 (I.D. February 14, 2006) (appropriate to direct delivery to appointed executor where other disputant would normally receive mail at the deceased person’s address).

           Second, I note that Marie Louise Gilbert had appointed Mr. Gilbert, as well as his sister, Ms. Bunney, as attorneys-in-fact (Finding 1).  However, this does not alter my conclusion.  Aside from not affording him any greater right than Ms. Bunney, under Virginia law the power of attorney was terminated automatically upon Louise Marie Gilbert’s death.  VA Code Ann. § 26-81(A)(1) (2010).  Accordingly, the disputed mail should be delivered to Ms. Bunney.  

           This decision only determines the right to delivery of the mail in dispute, and not ownership of the contents of such 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.

CONCLUSION

           This Initial Decision recommends that the Judicial Officer issue an order directing that the Linden Postmaster process the change of address request submitted by Ms. Bunney, and deliver to Ms. Bunney, at 306 South Harrison Road, Sterling, VA 20164-2720, all previously held mail, and all mail received in the future addressed to Louise Marie Gilbert or to her estate, at 12552 John Marshall Highway, Linden, VA 22642-1725.

                                                                                    Gary E. Shapiro
                                                                                    Administrative Judge