In the Matter of the Complaint Against COMMERCIAL INDUSTRIAL SUPPLY COMPANY 288 Littleton Road Chelmsford, MA 01824-3361 BAY STATE POWER LIGHT & SUPPLY 288 Little Road and BAY STATE CORP. Box 259 Chelmsford, MA 01824-0559 S & S DISTRIBUTORS 310 Franklin Street Box 351 Boston, MA 02110-3108 P.S. Docket No. 11/165; P.S. Docket No. 11/166; P.S. Docket No. 11/167; 07/21/83 Cohen, James A., Dicus, Carroll C. Jr. APPEARANCES FOR COMPLAINANT: H. Richard Hefner, Esq. Brendan J. O'Brien, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Anthony P. Mondello, Esq. Mondello & Mondello Zero Governors Avenue Medford, MA 02155-3007
On June 3, 1983, Complainant filed a Motion for Reconsideration of the May 11, 1983, Postal Service Decision denying its March 29, 1983, Petition for Supplemental Order in the three captioned cases. By Order dated June 7, 1983, Respondent was granted a period of twenty days in which to file a response to the Motion for Reconsideration. No response was filed within the time allowed or as of the date of this decision.
Complainant's Petition of March 29, 1983, alleged that Respondent was evading or attempting to evade the provisions of False Representation Order Nos. 81-177, 81-179 and 81-182, and supplemental False Representation Order No. 82-133 by continuing to seek remittances through the mail by means of solicitations in the guise of bills or invoices for goods neither ordered nor received. The Petition alleged that Respondent was continuing to seek remittances employing the names Commercial Industrial Supply Corp., Baystate Power & Light Supply, and Dura-Bulb Lighting Products, Inc., at a new address, 18 Canal Street, Medford, Massachusetts 02155-3625.
The Petition was supported by an affidavit of Postal Inspector Jay F. Abernethy dated March 28, 1983, and copies of three invoices allegedly sent by Respondent. In a timely filed Answer, Respondent denied all material allegations of the Petition.
The Postal Service Decision which Complainant requests be reconsidered concluded that the Petition and attachments did not establish that the goods for which payment was sought were ordered or received. While not addressed in the decision it was also concluded that the Petition and attachments did establish that it was the same Respondent who was soliciting remittances through the mail to the new address. 1/
Complainant's Motion for Reconsideration is supported by an additional affidavit of Inspector Abernethy dated June 2, 1983, and additional supporting exhibits. Except for an invoice dated May 16, 1983, Complainant has not shown that the evidence it has furnished with its Motion for Reconsideration could not have been submitted with the Petition for Supplemental Order. Evidence filed with a Motion for Reconsideration will not ordinarily be considered if it could have been initially filed. However, Respondent, although given the opportunity, has not responded to the Motion for Reconsideration and thus the allegations of the Motion and the supporting evidence are unrebutted in the record. Under these circumstances the additional evidence filed by Complainant with its Motion will be considered.
The evidence submitted with the Motion for Reconsideration establishes that Commercial Industrial Supply Corp., Baystate Power & Light Supply and Dura-Bulb Lighting Product Inc., by means of solicitations in the guise of invoices (Pet. Exhs. 2 & 4; Aff. Exh. G) sought payment for goods neither ordered nor received. The Commercial Industrial Supply Corp. invoice was sent to the Jon Andrew James Co. which is a nonexistent "seed" 2/ company (Aff. Exh. A). The Dura-Bulb Lighting Products Inc. invoice was sent to the Democrat Paper which, according to the publisher of the paper, neither ordered nor received the invoiced merchandise (Aff. Exh. D). One of the Baystate Power & Light Supply invoices was sent to the Mary Donovan Holland School (Aff. Exh. I) which went out of business some two and one half years prior to the date of the invoice (Aff. Exh. F).
The Baystate Power Light & Supply invoice dated May 16, 1983, filed with Complainant's Motion for Reconsideration is addressed to Pine Hill Montessori School (Aff. Exh. L). The unrebutted affidavit of Inspector Abernethy dated June 2, 1983, establishes that the merchandise for which this invoice was sent was neither ordered nor received by Pine Hill Montessori School. The invoice and the facts relating to it were not discoverable prior to the submission of the original Petition since it was not received by the school until after submission of the original Petition and after the May 11, 1983, Postal Service Decision. This invoice, with the supporting affidavit, would serve as a proper basis for the issuance of a supplemental order against Baystate Power & Light Supply independent of the original Petition.
On the basis of the evidence presented it is concluded that Respondent is evading or attempting to evade the provisions of False Representation Order Nos. 81-177, 81-179, 81-182 and 82-133 by using the same and different names at a different address to obtain remittances through the mail by means of solicitations in the guise of gills or invoices for merchandise neither ordered nor received. Accordingly, a supplemental False Representation Order against Respondent under the names and address alleged in the Petition is being issued with this decision.
1/ Attached to the March 29, 1983, Petition were invoices from Commercial Industrial Supply Corporation (Pet. Exh. 2), Baystate Power & Light Supply (Pet. Exh. 3) and Dura-Bulb Lighting Products, Inc. (Pet. Exh. 4), all at 18 Canal Street, Medford, MAssachusetts 02155. The first two named companies (with a slight variation in the Baystate name) were two of the Respondents in the prior proceedings. All three companies are operated by Stephen Salvatore, who admitted that he began conducting business as Dura-Bulb Lighting Products to avoid "hassling" by Complainant (Transcript of May 21, 1982 hearing, pp. 170-171). Inspector Abernethy's March 28, 1983, affidavit establishes that Mr. Salvatore leases space at 18 Canal Street, Medford, Massachusetts. Accordingly, it was concluded that the Respondents against whom Complainant sought the supplemental order were the same parties previously involved in these proceedings.
2/ A "seed" company is a nonexistent company with a mailing address used by a mailing list company to detect "illegal and unauthorized uses" of its lists (Aff. Exh. A).