In the Matter of the Complaint Against         October 2, 1992

 FREDERICK P. GLUCKSMANN-KUIS
 as trustee for Landmark Masonry
 Restoration, Inc.
 1673 Preston Road
 Alexandria, VA  22302-2124
 and
 P. O. Box 16465
 Alexandria, VA  22302-8465
 and
 3654 Gunston Road
 Alexandria, VA  22305-2006                     P. S. Docket No. PF-41


 APPEARANCE FOR RESPONDENT:                     None.

 APPEARANCE FOR COMPLAINANT: Geoffrey A. Drucker, Esq. Enforcement Division
 Law Department United States Postal Service Washington, DC 20260-1148

Prior to August 17, 1992, the General Counsel, the Reviewing Official of the United States Postal Service, issued and served on Respondent Frederick P. Glucksmann-Kuis, as trustee for Landmark Masonry Restoration, Inc., a complaint under the Program Fraud Civil Remedies Act (PFRCA), 31 U.S.C. § § 3801-3812. Mr. Glucksmann-Kuis failed to file a petition for hearing within 30 days after receipt of the complaint as required by 39 C.F.R. § 962.3. On September 23, 1992, the Reviewing Official transmitted the complaint to the

Judicial Officer for referral to a Presiding Officer pursuant to 39 C.F.R. § 962.4. The Judicial Officer thereafter referred the matter to the undersigned in accordance with that rule which requires the issuance of a decision based upon the information contained in the complaint when no request for hearing has been filed within the required time.

1. Respondent Frederick P. Glucksmann-Kuis is an individual who resides at 1673 Preston Road, Alexandria, Virginia. He receives mail at this address and the other two addresses listed in the caption of the proceeding.

2. On November 30, 1988, Mr. Glucksmann-Kuis incorporated Landmark Masonry Restoration, Inc. ("Landmark") under the laws of the State of Maryland. He listed himself as the sole director of Landmark.

3. On October 3, 1991, Landmark Masonry Restoration, Inc. was forfeited under the laws of the State of Maryland. When the charter of a Maryland corporation has been forfeited, its directors may be sued in their own names as trustees or in the name of the corporation. Md. Code Ann. Corps. & Ass'ns § 3-515. Therefore, in this proceeding, the General Counsel sues Mr. Glucksmann-Kuis as trustee for Landmark.

4. An Express Mail Corporate Account ("corporate account") entitles the account-holder to use an assigned number on Express Mail shipments in lieu of affixing postage. The Postal Service will withdraw the postage charges on these shipments, no matter where incurred, from a single account.

5. To open a corporate account, an applicant must make an initial deposit of its estimated postal charges for a two-week period or $100, whichever is greater.

6. To maintain a corporate account after it is opened, an account-holder must maintain a minimum balance sufficient to cover average charges incurred within a one-week period or $50, whichever is higher.

7. The Postal Service reserves the right to close a corporate account upon ten days written notice to the account-holder at the address set forth on the application if, for three consecutive postal accounting periods, the account-holder fails to maintain the required minimum balance. Each postal accounting period is approximately four weeks.

8. At the end of each postal accounting period, the Postal Service provides account-holders a mailing statement showing, among other items, the beginning balance, deposits, the number of shipments, postage, pick-up fees, and the ending balance. The statement also indicates the minimum amount that the customer must deposit to maintain the account.

9. On March 28, 1989, Landmark executed an Express Mail Corporate Account Agreement ("the agreement"), a copy of which is attached to the complaint as Exhibit 1.^*/ Two days later, Landmark furnished the deposit necessary to open the account.

10. The Postal Service assigned account number 207-329 to Landmark, and the company began using this number on April 3, 1989.

11. Between April 3, 1989, and January 22, 1990, Landmark's account fluctuated between a positive and a negative balance. After January 22, 1990, Landmark's account never achieved a positive balance. Landmark last deposited money into account number 207-329 on March 28, 1990, but the amount was insufficient to erase the outstanding deficiency.

12. On September 27, 1990, the Postal Service sent Landmark a letter of warning to remind it that:

One of the provisions of the Express Mail Corporate Account agreement is that you maintain a minimum balance sufficient to cover average charges incurred with a one-week period or $50.00, whichever is higher. If the account holder fails to maintain the minimum balance required, the Postal Service may terminate the Express Mail Corporate Account.

(Exhibit 2)

13. On November 1, 1990, the Postal Service sent Landmark a second letter of warning, which conveyed essentially the same message as the September 27 letter (Exhibit 3).

14. By letter dated January 7, 1991, the Postal Service informed Landmark that it had failed to maintain the minimum required balance in its corporate account for over 48 weeks and was now indebted to the agency for $1,685. The letter warned Landmark that, unless it deposited sufficient funds into the corporate account within the next ten days to create a positive balance, the Postal Service would terminate the account (Exhibit 4).

15. After receiving the January 7, 1991, letter, Landmark did not deposit any money into its corporate account. The Postal Service proceeded to close the account effective February 24, 1991.

16. Landmark continued to use account number 207-329 until February 19, 1991, thereby raising its total deficiency to $1,963.

17. Throughout the period of time in which account number 207-329 was active (March 30, 1989 - February 24, 1991), the Postal Service sent monthly account statements to Landmark at its last known address. Each statement informed Landmark of the minimum amount it needed to deposit to maintain the account.

18. On February 28, 1991, Postal Inspector Mark DiGiovanni phoned Landmark's president and sole director, Frederick Glucksmann-Kuis, to discuss the outstanding balance on corporate account number 207-329. Mr. Glucksmann-Kuis assured Inspector DiGiovanni that he would pay the deficiency and promised to contact Charles Lynn, Express Mail Manager, Southern Maryland Division, to make the necessary arrangements.

19. Mr. Glucksmann-Kuis never contacted Mr. Chuck Lynn with regard to paying the deficiency on corporate account number 207-329.

20. By letter dated April 5, 1991, postal attorney William R. Gilligan, Jr. demanded immediate payment by Landmark of its $1,963 corporate account deficiency (Exhibit 5). Landmark did not respond to this letter.

22. On August 5, 1991, Mr. Gilligan sent a second letter of demand to Landmark with regard to its $1,963 corporate account deficiency (Exhibit 6).

23. On August 22, 1991, a Landmark official promised Mr. Gilligan that the company would commence payments of $200 per month on September 16, 1991, and continue making them until the corporate account deficiency was paid in full.

24. On September 16, 1991, Mr. Gilligan sent a letter to Mr. Glucksmann-Kuis confirming his telephone conversation of August 22, 1991. Mr. Gilligan attached a draft Promissory Note to the letter and requested Mr. Glucksmann-Kuis to sign it and return it with the first $200 payment (Exhibit 7).

25. Mr. Glucksmann-Kuis did not return the Promissory Note to Mr. Gilligan, and Landmark made none of the promised payments.

1. When a postal customer tenders an item for delivery by Express Mail, the item constitutes a "claim" for service within the meaning of the Program Fraud Civil Remedies Act. 31 U.S.C. § 3801(a)(3)(A).

2. When a postal customer tenders an item for delivery by Express Mail that bears a corporate account number, the customer thereby represents that it has the required minimum balance in the account and will deposit funds into the account to pay for postage upon notice of a deficiency. If this representation is untrue, it constitutes a false statement in support of a claim for a service. 31 U.S.C. § 3801(a)(9)(A).

3. Between January 14, 1991, and February 19, 1991, Landmark tendered 21 items bearing its corporate account number for Express Mail delivery. The total charge billed for these shipments was $225 (Exhibit 8).

4. When it tendered these 21 shipments for delivery, Landmark knew that it had insufficient funds in its account to pay for postage and intended not to deposit sufficient funds into the account when requested to do so by the Postal Service.

5. Therefore, each of the 21 shipments constitutes a separate violation of the Program Fraud Civil Remedies Act, 31 U.S.C. § 3802(a)(1).

6. The General Counsel seeks an assessment of twice its loss $225, for a total of $450. In addition, the General Counsel seeks a civil penalty of $1,000 for each of the 21 false claims submitted by Landmark, for a total penalty of $21,000.

7. The file discloses no mitigating factors and Respondent has not opposed the request. Therefore, I conclude that Respondent is liable to the Postal Service for an assessment in the amount of $450 and civil penalties totalling $21,000.

                                        Quentin E. Grant
                                        Chief Administrative Law Judge

*/ All exhibits cited are attached to the complaint.