Appeal of P.S. Docket No. 37/49 -- GLEN MARION PILIE & ANY AND ALL OF VARIOUS KNOWN AND UNKNOWN NAMES

 In the Matter of the Complaint Against: 

 GLEN MARION PILIE &
 ANY AND ALL OF VARIOUS
 KNOWN AND UNKNOWN NAMES,
 4677 30th Street,
 San Diego, CA  92116-3299

 P.S. Docket No. 37/49

 02/28/91

 Cohen, James A., Judicial Officer

 Appearance for Complainant: Jerry Belenker, Esq., Betty A. Garner, Esq.,
 Consumer Protection Division, Law Department,
 United Sates Postal Service,
 Washington, DC  20260-1144 

 Appearance for Respondent: Glen M. Pilie,
 4677 30th Street, San Diego, CA  92116-3299

POSTAL SERVICE DECISION ON MOTION FOR RECONSIDERATION

Respondent has requested reconsideration of the order issued on December 28, 1990, finding him in default for failing to file an Answer to the Complaint within the period provided in the Notice of Answer and Hearing issued pursuant to the Rules of Practice, 39 C.F.R. Part 952. Respondent contends that he did not receive notice of these proceedings until January 8, 1991, and therefore his Answer dated that same day and received on January 17, 1991, should be considered to be a timely response to the allegations of the Complaint. In the alternative, Respondent requests a continuance or extension of time in which to respond to the Complaint, or dismissal of the Complaint based on the response filed with his motion.

Complainant opposes Respondent's requests, contending that the Complaint was properly served on Respondent, that Respondent failed to file a timely Answer, and that even if Respondent's Answer is timely, it does not establish that Respondent has a meritorious defense to the allegations of the Complaint.

Findings of Fact

1. On November 16, 1990, the General Counsel of the United States Postal Service filed a Complaint alleging that Respondent was engaged in conducting a scheme or device for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

2. On November 23, 1990, the Complaint and Notice of Answer and Hearing were delivered to 4677 30th Street, San Diego, CA 92116, the address to which Respondent solicits property through the mail (PS Form 3849; see Complaint Exhs. 1 - 3).

3. The 30th Street address is a commercial mail receiving service authorized to receive mail for Respondent. (P.S. Form 1583.) Doris Sumner, an employee of the mail receiving service, signed for the Notice and Complaint. (Id.; P.S. Form 3849.) The Notice advised Respondent that under the Rules of Practice the Answer must be filed no later than fifteen calendar days from the date of receipt of the Notice and Complaint.

4. Since the Notice and Complaint were served on Respondent on November 23, 1990, the Answer was required to be filed no later than December 10, 1990. The Answer was not filed by that date and Respondent was found to be in default.

Discussion

Respondent alleges that he did not receive a copy of the Complaint and Notice of Answer and Hearing until January 8, 1991. However, the record establishes that the Complaint was properly served on Respondent's agent on November 23, 1990, and that Respondent failed to file his Answer on or before December 10, 1990, the date it was due. Thus, Respondent was properly found to be in default.

Respondent has not shown that his failure to file a timely Answer was excusable. Respondent's assertion that he did not become aware of the Complaint until January 8, 1991, does not establish excusable cause. Respondent held himself out to receive property at the address of the mail receiving service n1 and was therefore responsible for obtaining any mail sent to that address. See Sheldon Lewenfus, P.S. Docket No. 30/159 at 5 (P.S.D. Sept. 30, 1988).

n1 Respondent apparently continues to use this address as it is the return address shown on his Motion for Reconsideration.

Respondent's allegation of a meritorious defense also does not serve to excuse his failure to file a timely Answer. National Association of Bankcard Holders, Inc., P.S. Docket No. 33/163 at 3 (P.S.D. May 19, 1989). Moreover, the facts asserted by Respondent do not support the claim of a meritorious defense since intent to deceive is not an element of a § 3005 violation and Respondent concedes he has used various names to obtain property through the mail for which no payment has been made.

Conclusion

Respondent was properly found to be in default and no excusable cause has been shown. Accordingly, Respondent's request for reconsideration and alternative requests are denied.