In the Matter of the Appeal of:              )
                                                              )
JACKIE C. JONES                                  )
Rental of P. O. Box 14051                     )
Benjamin Franklin Post Office                )  P.S. Docket No. 19/189

From Notice of Intent to Close
Post Office Box 14051, Ben Franklin
Post Office, Washington, D.C.

APPEARANCE FOR APPELLANT:         Mr. Joseph C. Crawford, Esq.

APPEARANCE FOR COMPLAINANT:
                                                              Thomas A. Ziebarth, Esq.
                                                              Consumer Protection Division
                                                              Law Department
                                                              United States Postal Service
                                                              Washington, D. C. 20260-1100

                                                              Attorney-at-Law 1251 Las Vegas Blvd. South
                                                              Las Vegas, Nevada 89104-1307

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

At the hearing on November 28, 1984, I made the following decision from the bench.

This is my decision from the bench in the matter of the petition by Jackie C. Jones protesting the termination of her rental Post Office Box 14051 at the Benjamin Franklin Post Office, Washington, D. C. 20044, by the United States Postal Service, Respondent.

On September 28, 1984, copies of letters dated September 11, 1984, were filed in this matter. The first letter by Petitioner is addressed to The Inspector, U.S. Postal Inspections Service, P. O. Box 1820, Washington, D. C. 20066-9000. The second letter is addressed to Mr. G. Hill, Postmaster, Benjamin Franklin Post Office, Washington, D. C. 20044.

Both letters complain that Petitioner was "locked out" of Post Office Box 14051 during the summer of 1984 for failure to pay the rent on that box.

On October 2, 1984, a Notice of Hearing was issued by this office stating that a hearing will be held on November 5, 1984, at 10:00 a.m. at this address.

On November 5, 1984, Respondent filed an Answer and a Motion to Dismiss. The Answer was filed later than it ordinarily would have been filed because Respondent's counsel suffered disruption due to a fire that occurred in October 1984 at the headquarters of the Postal Service.

Petitioner did not appear at the hearing that was scheduled for November 5, 1984. This office has not heard from Petitioner since these September 11, 1984, letters were filed, and has not heard from anyone on Petitioner's behalf in connection with this matter. The letters by Petitioner dated September 11 both contain a notice which stated "Direct all mail concerning this dispute to Mr. Joseph C. Crawford, Esquire, Attorney at Law, 1251 Las Vegas Boulevard South, Las Vegas, Nevada, 89104."

The October 2, 1984, Notice of Hearing was sent to Mr. Crawford and the file contains a certified mail return receipt which indicates that it was received by someone on behalf of Mr. Crawford on October 9, 1984.

The Answer and Motion to Dismiss of Respondent was also sent to Mr. Crawford by certified mail and the file contains a return receipt which indicates that a copy of the Answer and Notice of Hearing was received by Mr. Crawford's office on November 9, 1984.

Because the Answer's filing had been delayed, the November 5 hearing was postponed, by my Order of November 6, 1984, to November 20, 1984. Upon a motion of Respondent dated November 15, the hearing was subsequently postponed by an Order dated November 16 to today's date, November 28, 1984.

Unfortunately, copies of the November 6 and November 16 Orders were sent to Petitioner by certified mail addressed to P. O. Box 14051, which had already been closed, rather than to her designated representative, Mr. Joseph Crawford.

As I previously indicated, the Motion to Dismiss which was included with Respondent's Answer of November 5, 1984 is denied.

The motion indicated that the closing of a post office box for nonpayment of rent when due is not an appealable determination of the postmaster, and the appeal should be dismissed for want of jurisdiction.

The procedural regulations at 39 Code of Federal Regulations Part 958 are entitled "Rules of Practice in Proceedings Relative to the Refusal to Provide Post Office Box or Caller Service and the Termination of Post Office Box or Caller Service."

Although the Rules at 958.2 indicate that they shall be applicable to cases in which "a postmaster has issued a Determination denying an application for post office box or caller service or terminating the box or caller service being provided to a customer, and in which a petition in opposition to that determination has been filed", and although no determination was issued, I find that the Petition raises a dispute which falls within issues contemplated by these regulations, namely whether a termination of a post office box was proper.

And the fact that no determination was formally made in this case ought not to deprive a petitioner of right to have determined pursuant to those regulations whether the termination was proper. For that reason, I find that there is jurisdiction to hear this dispute and the Motion to Dismiss is denied.

Another procedural rule contained in 39 Code of Federal Regulations section 958 is at subsection 6, which is entitled "Default". That reads in applicable part: "If a person who has not waived oral hearing fails, without notice or without adequate cause, satisfactory to the presiding officer, to appear at the hearing, the presiding officer shall issue an order dismissing the appeal. If no protest to such order of dismissal is received within 10 days from the date of issuance of the order, such order shall become final."

And then it continues: "Any protest to the order of dismissal received within 10 days from the date of its issuance shall be given such consideration as the presiding officer deems to be warranted by the facts and circumstances alleged in the protest. An order of dismissal issued under this section by an Administrative Law Judge may be appealed to the Judicial Officer within 10 days from the date of the order."

The fact is that the Notice of Hearing in this case was initially sent to Petitioner addressed to Petitioner's designated representative, Mr. Joseph C. Crawford and a receive indicating that Mr. Crawford's office received the notice is contained in this file. From the date of that receipt, October 5, 1984, to the present time this office has received no indication that Petitioner has waived the oral hearing

Therefore, the Petitioner did not waive the oral hearing. The Petitioner did not appear at the November 5, 1984, hearing. Therefore, the Petitioner was in default with respect to that hearing. Although the Orders rescheduling that hearing were not properly sent to an appropriate address and, therefore, cannot be deemed to have put Petitioner on notice, Respondent's Answer and Motion to Dismiss was properly addressed to Mr. Crawford and was received.

Neither Petitioner nor anyone on behalf of Petitioner has responded to that motion or has indicated after receiving that motion that it waives an oral hearing. Let me indicate, therefore, that I find that Petitioner was in default of the November 5, 1984 hearing. I might add that I thought that if Petitioner did not appear at this hearing Petitioner would also be in default, but I cannot make that conclusion because Petitioner was not given notice with respect to this hearing date.

Turning to the merits, the Domestic Mail Manual requires box rentals to be payable in advance. The box rental in this case was not paid in advance. The testimony of Mr. Nathaniel Wilder indicates that the rent for this box was due on June 30, 1984.

The Domestic Mail Manual, 951.281 indicates that Notice 32, "Box Rent is Due", will be placed in boxes 20 days before rent is due. Mr. Wilder's testimony is that it was the post office's practice to do that, and he has no reason not to believe that such a notice was not placed in Petitioner's box.

The evidence is that the rent was not received for this box from Petitioner by June 30, 1984. Domestic Mail Manual, 951.29 contemplates a ten-day period of forbearance or grace. That ten-day period would have ended on July 10, 1984. As Mr. Wilder testified, no payment was received by July 10, 1984.

Mr. Wilder's testimony indicates that no payment was ever received for the rental of post office box 14051 for the period beginning July 1, 1984 and ending June 30, 1985.

Respondent's Exhibit 2, which is also an enclosure of Petitioner's letter dated September 11, 1984 to Mr. G. Hill, states that it encloses a money order in the amount of $20 in payment for the rent. The exhibit bears the date of July 23, 1984, and attaches a certified mail receipt which is postmarked July 24, 1984. Even this letter was sent at least 23 days after the due date and at least 13 days after the period of grace expired.

Mr. Wilder's testimony is that, contrary to the letter, no money order was enclosed. Instead, the customer's receipt with respect to a $20 money order was enclosed. Although the receipt shows that Petitioner purchased the money order, presumably to be used to pay for the rent on this box and thus at that point was acting in good faith, the fact is that even that letter did not enclose any payment and no payment has been tendered or received in this case.

Because Petitioner failed to make payment for this box within the time required, the termination of Petitioner's box number 14051 in the Benjamin Franklin Station by Respondent was proper and is upheld.

I affirm that decision.