In the Matter of the Complaint Against

ADAM YORK UNIQUE PRODUCTS COMPANY
340 Poplar Street at
Hanover, PA 17331

P.S. Docket No. 11/138;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
H. Richard Hefner, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-6100

APPEARANCE FOR RESPONDENT:
Susan G. Kaufman, Esq.
Peter D. Fischbein, Esq.
Schupak, Rosenfeld,
Fischbein Bernstein and
Tannenhauser
555 Madison Avenue
New York, NY 10022

POSTAL SERVICE DECISION
ON MOTION TO SET ASIDE DEFAULT

On August 17, 1981, Respondent filed a motion seeking to have set aside an order of default and the accompanying Mail Stop Order No. 81-157. The order of default which Respondent seeks to have set aside was issued on July 28, 1981, because Respondent had not filed its answer within the 15-day period provided in the Rules of Practice, 39 CFR 952, and the Notice of Answer and Hearing served on Respondent on July 6, 1981.

Respondent argues that its failure to file a timely answer was occasioned solely by the inadvertence and/or excusable neglect of its counsel. It also alleges that it will be severely prejudiced and irreparably harmed in its customer relations in the event the default is not set aside. Respondent further alleges that the Mail Stop Order procedures will cause disruption ot its normal business at a great loss of time and money.

Complainant opposes Respondent's request to set aside the default. Complainant alleges that Respondent's argument does not constitute mitigating circumstances to warrant setting aside the default order. Complainant contends that irreparable harm will not result to Respondent's business and disputes Respondent's assertion that mail is opened at the Post Office, maintaining to the contrary that mail is taken to Respondent's premises where it is opened in the presence of a Postal employee. Furthermore, Complainant states it has submitted a proposed Consent Agreement to counsel for Respondent which, among other things, would permit Respondent ot handle the mail in the normal manner, except that orders relating to the device at issue in this proceeding would be refunded and records of such transactions would be kept for possible review by the Postal Service.

Respondent has not established that the default and accompanying Mail Stop Order should be set aside. The failure of Respondent's counsel to establish procedures for handling mail while they are out of the office or engaged in other business is inadvertence or neglect which is not excusable and, therefore, does not serve as a basis for setting aside the default. See Economic Data Corporation, P.S. Docket No. 11/92 (P.S.D. July 17, 1981); Government Lands Digest, P.S. Docket No. 10/111 (P.S.D. July 7, 1981).

Although Respondent claims harm to its customer relations and disruption to its normal business practices, such consequences are of its own making. Respondent was given an opportunity to consider the possibility of a Consent Agreement, which, in general, would have allowed it to continue to operate normally although not fill orders for the product in question. However, it has chosen not to enter into such an agreement. Further, Complainant alleges, and Respondent has not persuasively shown otherwise, that existing procedures allow Respondent to open its mail at its facility and, therefore, it will not suffer irreparable harm or undue disruption to its normal C&CVITS2.291tices. In the event such procedures do not exist Respondent may file a motion requesting that they be established, which motion should show good cause therefor.

Respondent has not established that the default should be set aside. Accordingly its application to set aside the default is denied, Supplement A to Mail Stop Order No. 81-157 is revoked, and Mail Stop Order 81-157 is placed in full force and effect.