In the Matter of the Complaint Against

COMBINED AREA YELLOW PAGES and
YELLOW PAGES COMBINED AREA EDITION and
YELLOW PAGES DIVISION
P. O. Box 55703 at
Houston, TX 77055-5703

P.S. Docket No. 15/171;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
H. Richard Hefner, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
Wayne T. Hill, Esq.
5959 West Loop South Suite 550
Bellaire, TX 77401-2403

POSTAL SERVICE DECISION ON
MOTION FOR RECONSIDERATION

Respondent has filed a Motion for Reconsideration of the Order of April 15, 1983, finding Respondent in default and directing the issuance of a False Representation Order under 39 U.S.C. § 3005. The Order of default was issued because Respondent had not filed its Answer to the Complaint within the fifteen day period provided in the Rules of Practice and Proceedings Relative to False Representation and Lottery Orders, 39 C.F.R. Part 952.

In its Motion for Reconsideration Respondent contends it did not receive notice of the pendency of this proceeding and that service of the Complaint and the Notice of Answer and Hearing was not made in strict accordance with 39 C.F.R. § 952.8(b). Respondent further contends it has a meritorious defense to the allegations of the Complaint and that in any event the scope of the False Representation Order issued is overbroad and should be revoked or modified. Complainant argues that proper service was made on Respondent and that the Motion for Reconsideration should be denied.

The record reflects that the Complaint was filed with the Recorder on February 3, 1983. On February 7, 1983, the Complaint and a Notice of Answer and Hearing were sent to the Postmaster at Houston, Texas 77055-9998 for service on Respondent. The Notice of Answer and Hearing advised Respondent that the Answer must be filed "not later than 15 calendar days after the date you received this notice and the complaint." In bold type the Notice advised "FAILURE TO FILE A TIMELY ANSWER WILL RESULT IN THE ISSUANCE OF THE REQUESTED ORDER." According to a memorandum from the Acting Superintendent of the Long Point Postal Station dated April 4, 1983, the envelope containing the Complaint and Notice of Answer and Hearing was placed in Respondent's post office box on February 14, 1983, and picked up by Respondent on February 17, 1983, after Respondent had refused to sign for the envelope on February 12, 1983. Subsequent correspondence from the Recorder's Office was either refused or unclaimed and eventually returned to the Recorder's Office. However, the envelope containing the Complaint and the Notice of Answer and Hearing was not returned to the Recorder.

The affidavit of Respondent's representative who routinely picks up its mail confirms that she refused to sign for the envelope containing the Complaint and the Notice of Answer and Hearing. She was not thereafter asked to sign for the envelope. On February 17, 1983, she picked up the mail, but does not "recall seeing or receiving any envelope or complaint from the United States Postal Service." In an affidavit of Respondent's owner it is denied that Respondent received the Complaint.

The attempt to deliver the Complaint and Notice of Answer and Hearing to Respondent on February 12, 1983, and its refusal to accept service, were sufficient justification for the subsequent placement of the envelope containing the Complaint and Notice in Respondent's post office box and to satisfy the service requirements of 39 C.F.R. § 952.8. The memorandum of the Acting Superintendent and the failure of the envelope to be returned to the Recorder constitute evidence of service. Moreover, the risk of failure to receive actual notice falls on the party refusing service when it was properly tendered.

Respondent's assertion that it has a meritorious defense to the Complaint is not persuasive that the default should be vacated since it has been determined that proper service was made and no justification has been shown for the failure to file a timely Answer. See Ritz Division of MVCO, Inc., P.S. Docket No. 12/174 (P.S.D. Jan. 26, 1982) and cases cited therein at p. 2. Further there is no merit to the contention that the False Representation Order is overbroad.

Accordingly, Respondent's Motion for Reconsideration is denied and the stay of the return portion of False Representation Order No. 83-57 is vacated and the Order is placed in full force and effect.