In the Matter of the Complaint Against PERRY'S DISTRIBUTORS 350 So. Richland Avenue at York, PA 17401 and 25 North Beaver Street York, PA 17401 P.S. Docket No. 12/50; 12/03/81 Cohen, James A. APPEARANCE FOR COMPLAINANT: Sandra C.McFeeley, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Donald G. Oyler, Esq. Wolf & Oyler 112 Baltimore Street P. O. Box B Gettysburg, PA 17325
On October 15, 1981, Complainant filed a "Motion to Modify Transmittal of False Representation Order (P.S. Form 1374)" in which it requests that the transmittal memorandum accompanying Mail Stop Order No. 81-206 be permanently modified to read as follows:
"This order does not cover (1) mail under frank or (2) mail covered by a penalty envelope* or ..."
"*unless such penalty envelope appears to contain cash, checks or money orders apparently in payment for merchandise connected with the enterprise covered by the enclosed order."
Complainant argues that this modification is necessary because a large percentage of Respondent's business utilizes postal C.O.D. services which are sent via a Postal Service penalty enveloe directly to Respondent. Since these penalty envelopes contain postal money orders representing the purchase price of the product collected from Respondent's customers, Complainant contends their delivery to Respondent would frustrate the purpose of the Mail Stop Orders.
By Order dated October 16, 1981, Respondent was granted 15 days from the date of receipt of the Order in which to file a response to Complainant's motion. Respondent received the Order of October 16, on October 19, 1981, thus establishing November 6, 1981, as the date for filing a response.
By letter dated October 21, 1981, Respondent's counsel requested a copy of the transmittal memorandum so that he could consider filing a response to Complainant's motion. The transmittal memorandum was sent to counsel on October 23, 1981 and received by him on October 27, 1981. By letter dated November 4, 1981, Respondent's counsel requested a copy of the Complaint, Notice of Answer and Hearing and information and advice as to whether Respondent could obtain a hearing nunc pro tunc or in some way have the matter reopened, or the order rescinded. Counsel also indicated that it was possible that Respondent had already discontinued the scheme which was the subject of the Complaint. Because of the possibility the scheme had been discontinued the parties, during a telephone conference, were requested to advise whether a Consent
Agreemenbt might be appropriate. On November 30, 1981, the parties advised that no agreement could be reached.
As requested by Respondent's counsel he is being sent a copy of the Complaint, Notice of Answer and Hearing and the Rules of Practice. With respect to the question whether there exists a procedure for allowing a hearing nunc pro tunc, Respondent is advised that no such procedure exists. Although a motion to set aside the default order will be considered if filed, in order for such a motion to be successful, good cause must be shown. Several previous decisions have held that inadvertence or neglect does not constitute good cause. See Adam York/Unique Products Co., P.S. Docket No. 11/138 (P.S.D. Sept. 10, 1981) and cases cited therein. Regarding Respondent's final request, the procedure for modification or revocation of an order is specified in § 952.29 of the Rules of Practice.
Although Respondent has requested information on the various procedures to be followed in connection with the previously issued default order, it has not shown that the pending motion should not be granted. Accordingly, for the good cause shown in Complainant's motion, the tramsittal memorandum accompanying Mail Stop Order No. 81-206 is permanently modified as requested by Complainant. A copy of the modified transmittal memorandum is being sent to the Postmaster contemporaneously with the issuance of this decision.