In the Matter of the Complaint Against

LUCA L. STRATTA
d/b/a EUROPACK INTERNATIONAL
Courier Department
21 2560 Bancroft Way at
Berkeley, CA 94704-l713

and 2739 Channing Way
Berkeley, CA 94704-2456

P.S. Docket No. 21/21;

06/26/85

Cohen, James A.

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

APPEARANCE FOR RESPONDENT:
Mr. Luca L. Stratta
2560 Bancroft Way
Berkeley, CA 94704-l713

POSTAL SERVICE DECISION
ON MOTION FOR DEFAULT

On May 31, l985, Complainant filed a Motion for Default Order in which it requested that Respondent be deemed to be in default for failure to file a timely Answer. By Order of the same date, this matter was certified to the Judicial Officer by an Administra tive Law Judge based on the Administrative Law Judge's finding that the Notice of Answer and Hearing (hereafter referred to as the Notice) and the Complaint were served on Respondent on May l5, l985, the Answer should have been filed by May 30, l985, and a timely Answer was not filed.

While this matter was pending before the Judicial Officer, Respondent filed its Answer. A telephone conference was initiated with the parties to discuss the question of the timeliness of Respondent's Answer. During the conference, Respondent was given a seven day period in which to file a written statement of his position. Respondent filed his statement and Complainant filed a timely reply.

In his statement of position, Respondent asserts that he did not receive the Notice and Complaint until May l8, l985, as he was out of town from May l4-l8, that he was told his Answer would be timely if postmarked by June 2, l985, and that he has gone to considerable lengths to prepare a defense and will appeal if found to be in default. For purposes of deciding the timeliness question, the following findings are made.

Findings of Fact

The file contains return receipts from the two addresses to which the Notice and Complaint were sent. One receipt shows delivery on May l4, l985, and the other shows delivery on May l5, l985. The May l5, l985, delivery was to a prior residence of Respondent at which he no longer receives mail (Attachment G to Resp. Statement). The May l4, l985, delivery was to a "postal box mail-drop", operated by COPYMAT Copying Centers, a company which leases private mail boxes. Respondent acknowledges that the COPYMAT address to which the Notice and the Complaint were sent is both his and his company's formal mailing address (Resp. Statement at p. 2). This address is characterized in the advertisement attached to the Complaint as Europack's "International Offices" and is the return address set forth on the express mail envelopes sent to the Judicial Officer and the Recorder of the Judicial Officer Department.

On May 20 or 21, l985, Respondent alleges he had a conversation with a secretary in the Office of Administrative Law Judges and that he informed her the Notice and Complaint were received on May l8, 1985, and was advised that his Answer would be timely if postmarked by June 2, l985. On May 21, l985, a Notice of Service was issued by the Acting Recorder advising Respondent that the Notice of Answer and Hearing and Complaint were delivered on May l5, l985, and that the Answer was due on May 30, l985. Respondent mailed his Answer by express mail, postmarked on May 31, l985, and the Answer was received by the Recorder on June 3, l985.

The Notice issued pursuant to the Rules of Practice (39 C.F.R. § 952.7(a)), advised Respondent that the Answer must be filed with the Recorder no later than fifteen calendar days after the date of receipt of the Notice. In large block letters the Notice also advised that a failure to file the Answer within the time allowed would result in the issuance of the requested orders. The fifteen day period for filing the Answer, as set forth in the Notice, began to run from service on the COPYMAT address which took place on May l4, l985. ^*/ Thus, to be timely, the Answer was to have been filed on or before May 29, l985.

Discussion and Conclusion

Under the facts presented, proper service of the Notice and Complaint was made on Respondent at the COPYMAT address on May l4, l985. Although Respondent asserts that Europack International is not affiliated with, or an agent of COPYMAT, and COPYMAT is not an agent for receipt of Europack's mail, he solicits remittances to the COPYMAT address and uses that address as his and the corporation's formal mailing address (Attachment C to Resp. Statement; Resp. Statement p. 3).

Respondent's failure to establish procedures for the timely handling of his mail does not excuse late filing of the Answer. See ViAIDS Labs, Inc. v. United States Postal Service, 464 F. Supp. 976 (S.D.N.Y. l979); Ritz Div. of MVCO, Inc., P.S. Docket No. l2/l74 (P.S.D. Jan. 26, l982) and cases cited therein at p. 2. Moreover, his alleged subsequent conversation with a secretary in the Office of Administrative Law Judges does not excuse the default under the circumstances presented. The secretary's statement that an Answer would be timely if postmarked by June 2, l985, was, by Respondent's admission, based on his representation that he first received the Notice and the Complaint on May l8, l985. However, as noted, Respondent is charged with having received these documents on May l4, l985, when COPYMAT signed for them.

Neither Respondent's willingness to defend against the Complaint's allegations (see Combined Area Yellow Pages, et al., P.S. Docket No. l5/l7l (P.S.D. on Motion for Recon., June 9, l983); Ritz Div. of MVCO, Inc., supra) nor the potential of further litigation costs excuse the default. Accordingly, Respondent's untimely filing of the Answer is not excusable.

Complainant's Motion for Default and request for issuance of the Orders authorized by 39 U.S.C. § 3005(a) is granted. Accord ingly, such Orders are being issued with this decision.

*/ Because of this finding, the propriety of service at Respondent's former residence need not be considered. However, the date of service at the former residence was used as the basis for the Notice of Service advising Respondent that the Answer was due May 30, l985. Had the answer been placed in the mail on May 30, l985, it would have been considered to have been timely filed.