In the Matter of the Complaint Against WILLIAM H. FLAGG, 4630 Murray Street, Bristol, PA 19007-2004 and TENCO SUPPLY COMPANY, P. O. Box 2012, Bristol, PA 19007-2012 and 1805 Farragut Street, Bristol, PA 19007-5605 and 4630 Murray Avenue, Bristol, PA 19007-2004 P.S. Docket No. 29/112 March 31, 1987 James A. Cohen Judicial Officer APPEARANCES FOR COMPLAINANT: Norma J. Brown, Esq. W. Gary Claytor, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Thomas F. Edwards, Jr., Esq. Edwards & Young 238 Mill Street Bristol, PA 19007-4809
Respondent has filed an "appeal" from the Order of Default issued on March 13, 1987, with accompanying Cease and Desist Order No. CD-1305 and False Representation Order No. 87-24. The Default Order was issued as a result of Respondent's failure to file an Answer to the Complaint within the time allowed by the Notice of Answer and Hearing issued pursuant to the Rules of Practice in Proceedings Relative to False Representation and Lottery Orders, 39 C.F.R. Part 952. Respondent contends that some confusion existed in the record which excused its failure to timely file an Answer. As a result, it requests that the Default Order be set aside, that the Answer appended to its "appeal" be accepted in the record and that the matter be reopened for further processing.
The Complaint docketed February 3, 1987, was served on Respondent on February 19, 1987, thus establishing March 6, 1987, as the date by which the Answer was to be filed. The Notice of Answer and Hearing advised the parties that the hearing was scheduled for March 9, 1987. On March 4, 1987, in response to a motion filed by Complainant, the presiding Administrative Law Judge continued the hearing to March 30, 1987, and established March 11, 1987, as the date for Respondent to comply with a discovery request previously filed by Complainant. Respondent did not file its Answer by March 6, and on March 9, 1987, Complainant filed a Motion for Default. In the meantime, on March 5, 1987, newly retained counsel for Respondent wrote Complainant seeking both an extension of time to answer the discovery request and a continuance of the hearing date. He also enclosed a discovery request on behalf of Respondent. Respondent's letter dated March 5, 1987, was received by Complainant on March 9, 1987. Respondent did not send a copy of its March 5, 1987, letter to the Recorder.
The default referral by the Administrative Law Judge and the Order of the Judicial Officer finding Respondent in default were subsequently issued without knowledge of Respondent's letter of March 5, 1987.
It appears from the record that Respondent may not have fully understood the contents of the March 4, 1987, Order of the Administrative Law Judge or the procedures for obtaining time extensions in this matter. Respondent's letter of March 5, 1987, to Complainant shows a clear intent to defend against the allegations of the Complaint and, liberally construed, could be considered a timely, although misdirected, request to extend the date for filing the Answer. In view of these circumstances, partial relief from the March 13, 1987, Order finding Respondent in default is appropriate.
Accordingly, the Order of Default and the accompanying Cease and Desist Order dated March 13, 1987, are rescinded. However, False Representation Order No. 87-24, dated March 13, 1987, as modified by Supplement A thereto, dated March 19, 1987, shall remain in effect until this proceeding is concluded. Respondent's Answer is accepted in the record and the matter is remanded to the Administrative Law Judge for processing in accordance with 39 C.F.R. Part 952.