In the Matter of the Petition by                                                   ) 
                                                                                                  )
WALLACE S. NOLEN                                                                )
P. O. Box 647                                                                            )
White Plains, NY 10602-0647                                                   )
                                                                                                  )
Termination of Post Office Box                                                 ) P.S. Docket No. 14/22

Duvall, William A.

DECISION ON REMAND

Statement of the Case

On May 25, 1982, the Postmaster at White Plains, NY, issued a Notice of Intent to terminate service to Mr. Wallace Nolen through Post Office Box 647, White Plains, New York, within 20 days of Mr. Nolen's receipt of the notice. It appears from the file and from the transcript of the hearing ^1/ that this notice was sent to Mr. Nolen at 575 White Plains Rd., East Chester, NY 10709, as Certified Article number P326615302, and that it was receipted for by Mr. Nolen on June 12, 1982.

The last paragraph on page 1 of the Notice advised Mr. Nolen of his right to file an appeal within 20 days after his receipt of the Notice. On page 2 of the Notice Mr. Nolen was told that failure to file a timely appeal would cause the Determination to "become the final decision of the U. S. Postal Service in this matter." (Ex. A to Supp. to Mot. to Dismiss filed 8/20/82)

By letter dated July 21, 1982, Mr. Nolen appealed the Determination to terminate the box service. (Ex. B to Supp. to Motion to Dismiss filed 8/20/82) By notice dated July 29, 1982, the matter was set down for hearing on September 14, 1982, in Washington, D.C. In a letter dated July 31, 1982, Mr. Nolen requested that the hearing be held earlier, but that it be held in Westchester County, New York.

On August 6, 1982, Respondent filed a Motion to Dismiss this proceeding for Appellant's failure to file a timely appeal from the Determination to terminate service. On August 10, 1982, Respondent was allowed additional time in which to supply further documentation of some of the assertions made in the Motion, and such documentation was furnished on August 20, 1982, in the Supplement to the Motion to Dismiss. In a telephone call on August 24, Mr. Nolen advised Respondent's Counsel, at that time Mr. Ziebarth, and this Administrative Law Judge that he was hospitalized. It was agreed that when Mr. Nolen was discharged from the hospital he would be allowed 30 days to respond to the Motion to Dismiss and the Supplement to it, and an Order to that effect was issued on August 24.

On October 13, 1982, an Order was issued allowing Mr. Nolen until November 12, to respond or comment on the matters raised in Respondent's Supplement to the Motion to Dismiss. That response was docketed November 15, 1982.

On November 16, 1982, Mr. Nolen's petition was dismissed on the grounds that the 20-day time limit for filing a petition is jurisdictional, whereas Mr. Nolen did not file until well after that time had expired. Petitioner appealed, asserting that he should have been afforded a formal hearing on the question of timeliness and that any lateness should be excused because of his poor health and for other reasons beyond his control.

In a decision issued January 20, 1983, the Postal Service Judicial Officer remanded this matter to the presiding Administrative Law Judge for evidentiary proceedings on the facts related to the genuineness of Petitioner's signature on the June 12 receipts for the Notice of Intent to terminate and related to petitioner's ability to file a petition within the time allowed. A hearing was held April 28, 1983, in White Plains, New York, on three issues:

1. Whether Appellant's "signature on the return portion of the certified mail receipt was forged and/or";

2. Whether "he was physically unable to file a Petition prior to July 21, 1982; and

3. Can Appellant "establish the facts alleged (in 1 and 2, above) and any others relating to the timeliness of its appeal" in order that the presiding officer may "determine whether the appeal was timely or its untimeliness excusable."

Findings of Fact

Upon consideration of the entire record of this case, including the pleadings, the transcript of the testimony, the exhibits, and such proposed findings, conclusions and arguments as have been submitted, ^2/ I make the findings of fact now stated.

1. Petitioner's signature on the receipts, P.S. Forms 3811 (RX 1, Ex. D to Supp. to Mot. to Dismiss) and 3849 (RX 2, Ex. F to Supp. to Mot. to Dismiss) dated June 11, 1982, was genuine and not forged.

Mr. Nolen identified several signatures on letters and postal receipts as his own:

RX-3 at pages 56-58 (also marked K-ld),

RX-4 at pages 63-65 (also marked K-le),

RX-5 at pages 66-67 and 69-70 (also marked K-lb),

RX-6 at page 70,

RX-7 at page 72,

RX-8 at page 74 (also marked K-le),

RX-9 at pages 74-75 (also marked K-lf),

RX-10 at page 75 (also marked K-lg),

RX-11 at page 76 (also marked at page 2, K-lh), and

RX-12 at pages 77-78 (also marked K-li).

Respondent's exhibit 13 was received in evidence (Tr. 82). It is a report by the U. S. Postal Service Crime Laboratory and refers to RX-1 as the questioned signature and to RX-3 through 5 and 8 through 12 as presumed authentic signatures. It goes on to state that the writer (of the questioned signature) is the same person who wrote the signatures designated K-la through K-li. With respect to RX-6 and RX-7, and PX-6, Rule 901(b)(3) of the Federal Rules of Evidence indicates that it is within the competence and authority of the trier of fact to compare questioned items with authenticated ones in order to determine the authenticity of the former.

Based on comparison by the presiding officer and in light of the report of the Postal Service Crime Laboratory, the signatures on RX-1 and RX-2 appear to be those of Petitioner.

2. With respect to the issue as to whether Mr. Nolen was physically unable to file a Petition prior to July 21, 1983, there is insufficient evidence in the record to form the basis of a determination of this question.

The chronology of events in the pertinent period in Mr. Nolen's life has a direct bearing on this point. This chronology is outlined as follows, insofar as the record permits:

May 10, 1982 - Mr. Nolen instituted suit against Phelps

(All later Memorial Hospital, N. Tarrytown, NY for

dates are in $1,000,000 for matters now known or shown to

1982) be related to the instant proceeding.

May 25 - Issuance of Notice of Intent to terminate service through P. O. Box 647, White Plains. Attorneys for Phelps Hospital file motion to dismiss the Phelps Complaint.

June 12 - Notice was receipted for by Mr. Nolen. (RX 1 and 2)

June 9-13 - Mr. Nolen stated that he went, "on approx

Wed. thru. Sun.) mately June 9," from New York City to Montpelier, VT. From June 9 through 13, he said, he was engaged in serving process and in gathering evidence for use in conjunction with a complaint (PX-1) which he had or was going to lodge against his mother related to her handling of his father's estate. (Tr. 15-16) It is noted that it is stated in this complaint that it was dated June 10, 1982, at Middlebury, Addison County, Vermont. It does not bear a "filed" stamp, nor does it bear a seal of any court nor a signature or initials or name of the clerk of any court. It appears to be an extra copy of the complaint. This document (copy) bears the signature of the attorney then representing Mr. Nolen. Mr. Nolen stated that he was not in the State of New York on either June 11 or 12. (Tr. 16) He spent some time in and around Bennington, Middlebury, and Rutland, VT.

Mr. Nolen stated that he was not in New York State on June 11 or 12. (Tr. 16) The fact is that the month of June 1982 was one of great activity for Mr. Nolen. He scarcely can be blamed if his recollection of all of the dates of all of the happenings during this hectic period is less than perfect. Although in the overall his memory of times, dates and places is very good, he, as would be perfectly normal, did have some problems keeping the record right on target. He recognized the problem at page 23 of the transcript, among other places, when he had some slight difficulty with his "mental timetable." He referred to his return on June 18 from Albany to Ossining and said that he was in East Chester on June 19 and went to the East Chester (or Tuckahoe) Post Office and picked up a "couple of certifieds." The 19th was exactly one week after the date appearing on the receipts for the Notice of Intent. (RX 1 and 2) It would not be difficult or unnatural for Mr. Nolen, in reviewing the facts in preparation for the hearing, to have inadvertently selected the wrong Sunday as the one on which he picked up the certified letter containing the Notice. It can not be said positively that this is what occurred, but the likelihood that this, from among other possibilities, was what happened is vastly strengthened by the expert's positive identification of the handwriting on the receipt stamped June 12 as being that of Mr. Nolen. The result would be simply that the activities in Vermont took place one week earlier than recorded in Mr. Nolen's "mental timetable." In addition, the earlier trip to Vermont would have been consistent with his keen interest in the dispute with his mother over his father's estate. Accordingly, the events shown herein to have occurred between June 9 and June 19, 1982, are believed to have occurred, in fact, between June 2 and June 12.

June 14 & 15 - Unaccounted for, but, by his version Mr. Nolen was in and around Bennington, VT and traveling from there to Albany, NY. (Tr. 17-18)

June 16 & 17 - In Albany, NY, again in connection with suit against his mother. (Tr. 18)

June 18 - Returned to Ossining, NY to his apartment at 119 S. Highland Avenue. He reached his apartment at approximately 8 P.M. and he was very tired from the past days' activity. He was served with a notice and petition to recover possession of his apartment for non-payment of rent. (Tr. 17-18)

June 19 - At about 2 A.M. a friend of Mr. Nolen's found him in a semi-conscious state on the floor of his apartment in a condition of almost utter exhaustion. During the course of the day, he went to his office at 575 White Plains Road, East Chester, NY, only to learn that two of his employees had left without notice. A check Mr. Nolen had given the landlord of the office had not been honored as a result of a Sheriff's levy upon a bank account. (Tr. 21)

June 30 - Notice of petition and petition to recover possession of East Chester, NY, office, for non-payment of rent was served upon Mr. Nolen. He stated that because the petition in the Ossining matter concerning his apartment was defective in certain regards, he had to make numerous oral and written motions related to that particular matter. (Tr. 22)

July 2 - The date on which the appeal from the Notice of Intent to Terminate service to Mr. Nolen through P. O. Box 647 should have been filed.

To begin with, there is nothing stated in respect to any of the above events which would cause one to believe that the individual to whom they occurred would be, or would not be, rendered physically incapable of filing an appeal petition prior to July 21, 1983. Secondly, the crucial date is July 2, and the date July 21 has no meaning in this proceeding except that it marks the date of the actual filing of Mr. Nolen's petition. There is ample justification for the conclusion that Mr. Nolen must have been bone-weary and exhausted when he returned to Ossining on June 18 (probably June 11), but, from the purely physical point of view, some people would have been able to have sufficiently recovered from tiredness within the next week or so to have permitted them to have filed the petition by July 2. In order to make such a judgment, however, one must know more of Mr. Nolen's physical characteristics in such matters as general physical condition, stamina, and the like, than one gleans from the reading of this record. In addition, one should have the opinion on this question of a physician who is acquainted with and has treated Mr. Nolen. In the absence of evidence of the general character just described, it would be folly for the trier of fact to make a finding on the second issue based on this record.

3. Other factors relating to the timeliness of this appeal establish that the untimeliness of Mr. Nolen's appeal from the May 25, 1982 Notice of Intent was excusable.

The events which are related in the above chronology are of the kind which can and do occur within a short space of time, such as the actual filing of a complaint in a lawsuit, the service of some legal document, or the arrival from or departure for a given place. The worry caused by the events leading to the filing of a lawsuit, the inner conflict involved in determining whether those events warrant the institution of litigation, with its effect on personal relationships, and the work, and inconvenience of the litigation, itself, are not short-term matters. They remain and are sources of concern for periods long before and after the events occur.

Furthermore, in addition to all of the tribulations listed in the chronology it must be kept in mind that Mr. Nolen, between June 16-30, encountered difficulties, whether real or imaginary and whether of his own or someone else's making, with the receipt of his mail in White Plains. (P-1, Appeal from Decision and Order on Motion to Dismiss; Tr. 22) He said there is a long history of such difficulties. (Par. 3, p. 1, Appeal from Decision on Motion to Dismiss) In the file in a letter dated July 26, 1982, signed by the Manager, Customer Services, at the White Plains Post Office, it is stated that Mr. Nolen has "initiated several multimillion dollar lawsuits against the Postal Service."

Mr. Nolen's telephone service, also, was interrupted during this period for non-payment for the service because he didn't have proper notice of such action by the telephone company. (Tr. 22) In the Spring and Summer of 1982, Mr. Nolen was treated for severe colitis, exhaustion and dehydration by Dr. Bennet Bruckner. (Tr. 51-52) Mr. Nolen is now engaged in a lawsuit against Dr. Bruckner.

Finally, it appears that one of the principal concerns of Mr. Nolen is the lawsuit against his mother. He said that it is not just the existence of the litigation that troubles him, but that it is the nature of the suit and the fact that he was very close to his mother. (Tr. 22-23)

Not all people react the same way to the same or similar situations. Some individuals seem to possess a serenity and calm that is unshaken regardless of the number and the severity of the adversities that overtake them, whereas others are overwhelmed by lesser problems. The chronology and the other facts that have been recited herein, and these items are not exhaustive, do present a strong case to support the finding that Mr. Nolen, shortly before and after the issuance of the May 25, 1982 Notice of Intent was involved in untoward happenings of such a disturbing degree of seriousness and in such frequency as to upset the equilibrium of the most composed. Even if on examination these events prove to be of less significance to outsiders, they assume large proportions if one must wrestle with all of them at one time - from the sheer weight of numbers if from nothing else.

This record supports the finding that the cumulative effect of the simultaneous convergence of so many problems was productive of so much stress that, at least temporarily, he was burdened with a situation with which he, acting alone, could not cope. It follows that the untimely filing of Mr. Nolen's appeal from the Notice of Intent to terminate service to him through P. O. Box 647, White Plains, NY, was excusable.

The proper future steps to be taken in this matter will be prescribed at the appropriate time.

1/ Transcript of proceedings on April 28, 1983, p. 95-97, RX-1 and 2.

2/ Petitioner's post-hearing submittals originally were to have been filed on June 4, 1983.

In a telephone call from Mr. Nolen on June 2, confirmed by Order dated June 3, 1983, his request for an extension of filing time to June 27, 1983, was granted. Mr. Nolen signed a receipt for this Order on June 5. On June 30, 1983, Mr. Nolen advised the secretary to the undersigned by telephone that he had mailed the document directly to the undersigned on June 26. The document has not been received. A written notification of such non-receipt was sent to Mr. Nolen on July 7, 1983 and receipted for by him on July 8. Mr. Nolen was advised by letter dated July 20, 1983, that because nothing had been received from him since the hearing, the preparation of a decision in this matter would go forward. He was told, also, that if he submits any written document prior to the issuance of this decision, the document will be given full consideration.