In the Matter of the Complaint Against COMMERCIAL INDUSTRIAL SUPPLY COMPANY 288 Littleton Road at Chelmsford, MA 01824 P.S. Docket No. 11/165; 09/28/81 Cohen, James A. APPEARANCE FOR COMPLAINANT: H. Richard Hefner, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1100 APPEARANCE FOR RESPONDENT: Anthony P. Mondello, Esq. Mondello & Mondello Zero Governors Avenue Medford, MA 02155
By motion dated August 31, 1981, Respondent seeks to have set aside an Order of Default and an accompanying Mail Stop Order which were issued on August 31, 1981. The Order of Default and accompanying Mail Stop order, Order No. 81-179, which Respondent seeks to have set aside were issued because Respondent had not filed its answer within the 15-day period provided in the Rules of Practice, 39 CFR 952, and the Notice of Answer and Hearing served on Respondent on August 3, 1981. The return portion of Mail Stop Order No. 81-179 has been stayed during the pendency of Respondent's motion.
Respondent argues that its fialure to file a timely answer occurred because Mr. Stephen Salvatore, operator of Respondent, was away on business at the time of service of the Complaint and, since the envelope containing the Complaint in this case bore no date of service, Respondent's counsel believed the Complaint was served on Respondent on either August 15 or 16, 1981, the date MNr. Salvatore brought the Complaint to counsel's office.
Complainant opposes Respondent's request to set aside the default. Complainant alleges that Respondent's motion does not establish good cause for failing to file the Answer within the time allowed and, therefore, should not be set aside.
Respondent has not established that the default and accompanying Mail Stop order should be set aside. The Complaint was properly served on Respondent on August 3, 1981, and its failure to establish procedures for handling mail while its operator was away on business and its failure to document the date of receipt of the Complaint and advise its counsel fo such date is inadvertence or neglect which is not excusable. See Adam York, P.S. Docket No. 11/138 (P.S.D. September 10, 1981); Economic Data Corporation, P.S. Docket No. 11/92 (P.S.D. July 17, 1981); Government Lands Digest, P.S. Docket No. 10/111 (P.S.D. July 7, 1981); ViAids Laboratories, P.S. Docket No. 6/172 (P.S.D. December 15, 1978), aff'd, ViAids Laboratories, Inc. v. United States Postal Serv ice, 464 F. Supp. 976 (S.D. N.Y. 1979).
Accordingly, Respondent's request to set aside the default is denied, Supplement A to Mail Stop Order No. 81-179 is revoked, and Mail Stop Order No. 81-179 is placed in full force and effect.