In the Matter of the Complaint Against

W. AND C. MATERIALS
P. O. Box 607
at Lawnside, NJ 08045

P.S. Docket No. 7/139;

Duvall, William A.

APPEARANCE FOR COMPLAINANT:
Sand ra C. McFeeley, Esq.
Roderick P. Sullivan, Esq.
Law Department
U.S. Postal Service
Washington, D.C. 20260

APPEARANCE FOR RESPONDENT:
Louis D. Fletcher, Esq.
35 South Broad Street
P. O. Box 379
Woodbury, NJ 08096

INITIAL DECISION

This proceeding was initiated on January 24, 1980, when the General Counsel for the United States Postal Service filed a complaint alleging that Respondent, W. and C. Materials mailed unsolicited billing invoices to various businesses in violation of 39 U.S. Code § 3005. The complaint further alleged that the invoices were calculated and intended to induce their recipients to remit money or property through the mails in payment for lighting supplies and that such supplies were neither ordered or received by the recipients of the invoices.

Thomas F. Valent testified for Complainant at the hearing, while Walter C. Lemmerman, Sr., testified for Respondent.

Mr. Valent testified that as a U. S. Postal Inspector, he is a Fraud Specialist in Philadelphia. He investigated Respondent from May, 1979 until the date of the hearing. In April of 1979, the U. S. Postal Service received complaints from various parts of the United States involving receipt of invoices by businesses, banks and other institutions for merchandise they stated that they had not ordered. Mr. Valent testified that the Postal Service received approximately 13 unsolicited complaints. Eight depositions were taken with respect to these complainant's and five were received into evidence. ^1/

These depositions of William F. Hofmann, Helen Ruth Moredock, James M. Oakes, Floyd Hastings, and Noreen Buyatt indicated that the individuals were officials of five different firms. These firms had received invoices from W. and C. Materials similar to those at Appendix I of this Decision. The individuals were knowledgeable regarding their firms' purchase and receipt of light bulbs. Each individual stated that to his knowledge no employee of his firm placed an order with W. and C. Materials and his firm was not offered any gift by W. and C.

Walter C. Lemmerman, Sr., testified that he and his son Walter C. Lemmerman, Jr., together with one part-time employee, operated W. and C. Materials. He began the business in November, 1978. He stated that initially he had no system for verifying orders and that caused problems. He did not remember the names of most of the people who were deposed in connection with this case.

I make the following findings of fact:

1. Respondent, W. and C. Materials, engages in business and attempts to obtain remittances or money through the mails.

2. In connection with Respondent's business, invoices similar to those at Appendix I are transmitted.

3. The invoices make the following misrepresentations of fact:

A. The addressee of the invoices has purchased or ordered for purchase a quantity of lighting supplies from Respondent.

B. The addressee has previously given a verbal order to Respondent for lighting supplies.

C. Respondent has sent merchandise to the addressee of the invoice via common carrier or the United Parcel Service. The invoices list the addressee in a box labeled "Sold To" and list information regarding the addressee in a box labeled "Shipped To." The invoices indicate a method of shipment, an order number, a salesman and terms of payment. All of this information creates the false impression in the mind of the addressee that the addressee has previously ordered the lighting supplies listed in the invoice and that the supplies have been shipped to the addressee.

4. I further find that the representations made by Respondent in its mailed invoices are both material and false in that they cause persons to remit sums of money through the mails to Respondent.

The legal test to be applied to interpretation of representa- tions is the probable impact of the representations, taken as a whole upon ordinary minds, Donaldson v. Read Magazine, 333 U. S. 178 (1948).

An itemized invoice may be deceptive because the statements contained therein are untrue or because statements which should be contained are omitted. In considering the interpretation that ought to be given commercial claims, the reasonable implications arising from such claims are to be given weight as well as that which is expressly stated. Donaldson v. Read Magazine; Vibra Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957); Spiegel Inc. v. F.T.C., 411 F. 2nd 481 (7th Cir. 1969); Baslee Products, Corp. v. United States Postal Service, 356 F. Supp. 841 (D.N.J. 1973).

In consideration of the above findings of fact, and based upon the evidence of record in this proceeding, I conclude as a matter of law, the Respondent is, as charged, engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representation within the meaning of Section 3005 of Title 39, U. S. Code.

Accordingly, a Mail Stop Order, as provided in that Section of the Code and substantially in the form attached, should be issued against Respondent.

1/ The depositions of three other witnesses were introduced and subsequently stricken because of the parties' failure to locate the depositions in which these witnesses were cross-examined. (Tr. 56)