In the Matter of the Complaint Against BUDGET ADVERTISING AGENCY BUDGET-ADS BUDGET-ADVERTISING BUDGET AD AGENCY P. O. Box 189 at Buena Vista, GA 31803-0189 and P. O. Box 1436 at Americus, GA 31709-1436 P.S. Docket No. 18/136; 05/21/84 Cohen, James A. APPEARANCE FOR COMPLAINANT: H. Richard Hefner, Esq. Consumer Protection Division Law Department U. S. Postal Service Washington, DC 20260-1100 APPEARANCE FOR RESPONDENT: Ulysses Franklin 512-H 3rd Avenue Albany, GA 31704-3030
By letter dated March 16, 1984, Respondent seeks to have set aside an Order holding Respondent in default, False Representation Order No. 84-20, and Cease and Desist Order No. CD-16, all of which were issued on March 14, 1984. These orders were issued because Respondent had not filed its Answer to the Complaint within the 15-day period provided in the Rules of Practice, 39 C.F.R. Part 952, and the Notice of Answer and Hearing. The return portion of False Representation Order No. 84-20 has been stayed during the pendency of Respondent's request.
Respondent contends that he was unable to file an Answer because he never received a copy of the Complaint and Notice of Answer and Hearing. He therefore argues that the issuance of the default and accompanying orders was improper. Respondent's contention is rejected because the record reveals that proper service of the Complaint and Notice of Answer and Hearing was obtained on February 22, 1984, and no Answer was timely filed.
Copies of the Complaint and Notice of Answer and Hearing were sent by certified mail to the Postmaster for each of the addresses listed in the caption of this case, with instructions to deliver these documents to the addressees in question. These documents were delivered to Essie Franklin on behalf of Respondent, by the Postmaster at Buena Vista, Georgia. Ms. Franklin signed receipts for the documents at 11:00 a.m. on February 22, 1984. Ms. Franklin is the sister of Respondent's owner, Ulysses Franklin, and has been authorized to receive mail on behalf of her brother for approximately one year (Affidavit of Postmaster J. N. Russell, filed April 18, 1984).
It is clear that Essie Franklin promptly delivered other certified mail documents to Respondent during this time period. In his March 16, 1984 letter, Mr. Franklin admitted that he had received three other certified letters from the United States Postal Service, and the record contains receipts for these letters signed on March 14, 1984, by Essie Franklin as Respondent's authorized agent.
The Rules of Practice provide that the Notice of Answer and Hearing and a copy of the Complaint shall be delivered to the Respondent "or his agent." 39 C.F.R. § 952.8(a). Thus, proper service was made on Respondent by delivering these documents to Essie Franklin, Respondent's agent.
Respondent contends that he never received the documents in question and appears to be arguing that he should not be held in default due to some inadvertence or neglect of his agent. However, even if his agent had neglected to deliver the documents to him, this would not have provided him with a valid excuse for failing to file a timely Answer. The failure of Respondent to establish procedures for handling his mail to assure timely responses constitutes inadvertence or neglect which is not excusable. See, ViAids Lab, Inc. v. United States Postal Service, 464 F. Supp. 976 (S.D.N.Y. 1979); Adam York, P.S. Docket No. 11/138 (P.S.D. Sept. 10, 1981); Economic Data Corp., P.S. Docket No. 11/92 (P.S.D. July 17, 1981); Government Lands DigesGEORGE-M.281 ket No. 10/111 (P.S.D. July 7, 1981).
Accordingly, Respondent's request to set aside the default is denied, Supplement A to False Representation Order No. 84-20 is revoked, and the False Representation Order is placed in full force and effect.