In the Matter of the Complaint Against

U.S. BIO-GENICS CORP.,
U.S. BIO-GENICS, and
THOMAS ROVERE
at New York, New York.

H.E. Docket No. 5/122;

Ablard, Charles D.

POST OFFICE DEPARTMENT JUDICIAL OFFICER Washington 25, D. C.

O R D E R

On November 12, 1958, a motion to dismiss this proceeding without prejudice was filed by the complainant because of a belief that certain decision of federal courts invalidated an affidavit of agreement between the parties terminating the proceeding. Oral arguments were held on the motion on November 13, 1958, by counsel for the complainant and the respondent. The counsel for the respondent opposed the motion stating that the respondent believed that the affidavit was a valid legal instrument and was not invalidated by the decisions of the Court of Appeals of the Second Circuit in Columbia Research Corp. v. Schaffer and Vibra-Brush v. Schaffer decided May 13, 1958, which were the decisions upon which the complainant relied.

The complainant seeks to unilaterally void the affidavit of agreement reached by the parties in this proceeding and filed September 10, 1957. That affidavit was a voluntary agreement signed by the President of the respondent corporation and accepted by the complainant. It terminated the proceedings then pending and provided a procedure whereby the Post Office Department could institute a proceeding based on a breach of that affidavit to obtain the issuance of a fraud order.

That procedure was not followed in this case but rather an entirely new complaint was issued with no allegation of breach of the affidavit. (P.O.D. Docket 1/55) I think it is prejudicial to have the complainant unilaterally attempt to withdraw the affidavit which he has accepted. The respondent has not attacked, and in this case the respondent admits, the legal adequacy of the affidavit. Had the respondent challenged the affidavit in this case and the complainant confessed error, a different situation would have been presented.

The proper procedure for the complainant to follow is that which was followed in the matter of complaint against Jenasol and in the matter of complaint against Owen Laboratories where a complaint was issued pursuant to the affidavit charging a breach of that affidavit. That has not been done in this proceeding and the new complaint against U.S. Bio-Genics pending on P.O.D. Docket No. 1/55 scheduled for hearing today should be dismissed. The motion is denied.