In the Matter of the Complaint Against

K. M. POINTER Bronx
General Post Office
558 Grand Concourse
P. O. Box 1455
at Bronx, NY 10451

RE: P. O. Box 1455 Bronx, NY 10451

P.S. Docket No. 12/68

02/22/82

Bernstein, Edwin S.

APPEARANCE FOR APPELLANT:
Rev. K. M. Pointer
558 Grand Concourse
P. O. Box 1455
Bronx, NY 10451

APPEARANCE FOR RESPONDENT:
Thomas A. Ziebarth, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

This is an appeal from the Postal Service's Notice of Intent to close Appellant's Post Office Box.

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

On August 18, l981, the Postal Service issued a Notice of Intent to Close Post Office Box 1455, a box issued to Rev. Katherine M. Pointer. The notice stated:

"You are in violation o Section 951.144, Domestic Mail Manual, by failing to update Form 1093, Application for Post Office Box or Caller Service. Pursuant to Section 951.822, DMM, this constitutes grounds for closure of your post office box."

On September 14 and 29, l981, Appellant filed letters stating that although she was not filing an appeal she was requesting a hearing in New York City. By Order dated October 1, l981, I interpreted this as a timely appeal; advised Appellant that a request to relocate the hearing must be justified pursuant to Rule of Practice 958.4; and recommended that she obtain the services of a lawyer.

On October 9, l981, Respondent filed an Answer and Motion to Dismiss. On December 14, l981, Appellant waived the scheduled December 28, l981 oral hearing and elected to submit on the record. On December 31, l981, Respondent filed a Memorandum in Support of Motion to Dismiss.

Respondent's memorandum quoted Section 951.822 of Domestic Mail Manual (DMM) which reads:

"Grounds for Closure or Refusal to Renew. A box may be closed whenever the boxholder has falsified the application for the box or has violated or is violating, any of the regulations or contractual terms or conditions relating to its care and use."

Section 950.13 of DMM is entitled, How to Rent a Lockbox. Sub section 950.131 reads:

"Application. Form 1093, Application for Post Office Box or Caller Number, obtainable from any postmaster, must be filled out completely and submitted to the postmaster at the post office where box service is desired. The application will be approved or denied by the postmaster. Furnishing false information on the application is sufficient reason for denial (see 951.811)."

Section 950.14 of DMM is entitled Condition of Use for lockboxes . Subsection 950.144 reads:

"Updating Application Form. Whenever any information required on Form 1093 changes or becomes obsolete, it is the duty of the boxholder to file a revised application reflecting such changes. Changes or obsolete information must be updated as soon as noted."

Respondent alleged that Rev. Pointer violated Section 950.14 by falling to amend Form 1093 to show her current address. In support of its position, the Postal Service submitted a written statement dated July 31, l981, of Mr. Woodrow Connor, the Postmaster for Bronx, New York 10451. Mr. Connor stated that the address that Appellant gave on her application, 695 East 163rd Street, Apt. 1A, was not her address but the address of Claude and Marie Smith. Attached to Mr. Connor's statement were two supporting statements. A note dated July 8, l981, by S. Weintraub on New York City Housing Authority letterhead read:

"This letter is to advise the Bronx Postmaster's office that according to our records at the Forest Houses Project, Mrs. Katherine M. Pointer is not now or ever has been a tenant at 695 E. 163rd Street, # 1A, Bx, N.Y. 10456."

Another note dated June 9, l981, from Leonard Eisenberg, who Mr. Connor identified in his statement as the mail carrier, read:

"On 4/1/81 a removal was received on Katherine Pointer of 695 E 163 St to have her mail forwarded to Box 1455, Bronx, NY 10451.

I informed my supervisor that this party never lived in 695 E 163. She received mail at a friend's apartment. The fried is Mrs Smith of Apt 1 A."

In its December 31, l981, memorandum, Respondent stated "From the face of Rev. Pointer's synopsis it is clear that she has not filed a revised application showing her current address." In sup port, Respondent quoted from Paragraph 6 of Appellant's written submission of December 14, l981. The quoted language reads:

"Because of strange faces seen lurking near building in the neighborhood and pressure put on the family because of my stay there, at 695 East 163rd St. I was forced to seek shelter elsewhere." (The bracketted language was supplied by Respondent.)

Although Appellant is not an attorney, is not represented by counsel, and writes in a rambling manner, I find her position to be consistent. She contends that during the period in which she held Post Office Box 1455, she lived at 695 East 163rd Street with friends who had an apartment there, and that was her residence.

In her September 24, l981, letter, Appellant stated that she lost "the value of 100 x 150 feet of prime property in South Bronx known as 667 East 163rd Street." In her December 14, l981 state ment, she referred to a building demolished at 667 East 163rd Street and stated:

"Pointer gave Morrisania Station and Bronx Main Post Office the address 695 East 163rd Street and it has not changed. The address remained the same."

Later in that statement, Appellant stated:

"The New York City Housing Authority, the Department of Housing, Preservation and Development, the Post Office, and I, Rev. Pointer----know that I was no longer at 667 East 163rd Street. But, I Rev. Pointer, knows where I lived after my home was taken. . ."

I do not agree with Respondent that it is clear that the word "there" in Paragraph 6 (". . .because of my stay there, I was forced to seek shelter elsewhere. . .") referred to 695 East 163rd Street. It is just as likely and perhaps more likely that, in the context of her other statements, "there" meant 667 East 163rd Street.

In Appellant's "Synopsis" dated December 7, l981, she stated:

"When I was thrown out of home, a friend took me into her home---became as one of the family--- where I had hoped to stay until justice was rendered. The address 695 East 163rd Street, Bronx, New York 10456 was not changed as they claimed."

Later she stated:

"At both post offices the record should read as follows: 695 East 163rd Street, Bronx, New York, 10456. If the record shows anything else, it has been altered."

Based upon the evidence, I find that before Appellant applied for Post Office Box 1455, she had moved from 667 East 163rd Street to Apartment 1A, 695 East 163rd Street, where she lived with her friends, the tenants of that apartment. Therefore, the Form 1093 that Appellant filed on February 11, l981, was an remains accurate and the Postal Service's action to close Appellant's Post Office Box No. 1455 was erroneous.

Form 1093 lists a bloc for "Address." That word has been defined as, "the designation of a place where a person, organization or the like, may be found or will receive letters, parcels, etc." The Random House College Dictionary (l973); and as "Place where mail or other communications will reach a person," Black's Law Dictionary, Fourth Edition.

None of Respondent's evidence proves that 695 E. 163rd Street is not Appellant's address in accordance with those definitions. Mr. Connor's statement is based on other statements and contains no first-hand knowledge. Mr. Weintraub's note merely stated that Appellant is not a tenant at 695 E. 163rd Street, Apt. 1A. The carrier, Mr. Eisenberg, first stated that Appellant never lived at 695 E 163rd Street but gave no reasons for that conclusion. He then stated "she received mail at a friend's apartment. The friend is Mrs. Smith of Apt. 1A." This was the only evidence that Respondent submitted and this evidence is insufficient to show that 695 E. 163rd Street, Apt. 1A, was not Rev. Pointer's address.

Therefore, the appeal is sustained.