In the Matter of the Complaint Against S & S DISTRIBUTORS 310 Franklin Street Box 351 at Boston, MA 02110 P.S. Docket No. 11/167; 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 26, 1981, Respondent seeks to have set aside an Order of Default and an accompanying Mail Stop Order which were issued on August 25, 1981. The Order of Default and accompanying Mail Stop Order, Order No. 81-177, 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 July 30, 1981. The return portion of Mail Stop Order No. 81-177 has been stayed during the pendency of Respondent's motion.
Respondent argues that its failure to file a timely answer occurred because Mr. Alfred Salvatore, operator of Respondent, was on vacation at the time of service of the Complaint. It also argues that its counsel believed service took place on either August 15 or 16, 1981, on which dates it believed Complaints in P.S. Docket Nos. 11/165 and 11/166 relating to the same business trnasactions were received. In support of this latter argument, Respondent contends that the envelope containing the Complaint in this case bore no date of service.
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 July 30, 1981, as is evidenced by a signed receipt executed on behalf of Respondent. Respondent's failure to establish procedures for handling mail while its operator was out of the office and for noting the date of receipt of the Complaint 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); 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. 6/72 (P.S.D. December 15, 1978), aff'd, ViAids Laboratories, Inc. v. United States Postal Service, 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. 81-177 is revoked, and Mail Stop Order No. 81-177 is placed in full force and effect.