In the Matter of the Petition by ) July 15, 1993 ) BENJAMIN ISRAEL ) President ) Architectural Solar Products, Inc. ) P.O. Box 1512 ) Horsham, PA 19044-1512 ) ) Termination of ) Post Office Box Service ) P.S. Docket No. 40/131 APPEARANCE FOR PETITIONER Benjamin Israel Architectural Solar Products, Inc. P.O. Box 1512 Horsham, PA 19044-1512 APPEARANCE FOR RESPONDENT John F. Ventresco, Esq. Consumer Protection Law 475 L'Enfant Plaza, S.W. Washington, DC 20260-1147
Petitioner has filed an appeal from the Initial Decision of an Administrative Law Judge which granted Respondent's Motion for Summary Judgment and upheld the decision of the Postmaster in Horsham, PA to close Post Office Box 1512. The Postmaster based her decision on Petitioner's failure to provide a current address for either Architectural Solar Products, Inc., (ASP) or an officer of the corporation as required by the Domestic Mail Manual (DMM).
In March, 1993, it came to the attention of the Postmaster at Horsham, PA that ASP was no longer doing business at the address which appeared on its P.O. Box Application, Form 1093. Since DMM § 951.153 requires a box customer to file a revised application whenever any information required on the form changes or becomes obsolete, the Postmaster informed Petitioner that he needed to supply an address where ASP was doing business, or provide a home address for an officer of the corporation. After making several oral and written requests for such an address, the Postmaster notified Petitioner on March 17, 1993, that service to ASP's post office box would be terminated because Petitioner had failed to provide the required address.
Petitioner appealed the Postmaster's decision and was notified that a hearing was scheduled for May 12, 1993, in Washington, DC. By letter received April 30, 1993, Petitioner requested that the hearing be moved to Horsham, PA so he could personally attend and present his case. On April 27, 1993, Respondent filed an Answer and Motion for Summary Judgment which was sent to Petitioner on May 5, 1993, with an Order from the presiding Administrative Law Judge granting Petitioner 10 days in which to respond to the Answer and Motion for Summary Judgment. The Order stated that if no response was filed within the time allotted, the Motion for Summary Judgment would be granted. Petitioner did not file any response to the motion. On June 16, 1993, the Administrative Law Judge issued an Initial Decision granting the Motion for Summary Judgment and upholding the Postmaster's decision to terminate ASP's service at Post Office Box 1512, Horsham, PA 19044-1512.
In his appeal, Petitioner contends that he did not understand that he needed to reply to Respondent's Answer and Motion for Summary Judgment. According to Petitioner, he was waiting for a reply to his request that the scheduled hearing be moved from Washington, DC to a location in Horsham, PA. Petitioner further asserts that he was unaware any decision could be issued without such a hearing.
The May 5, 1993, Order of the Administrative Law Judge clearly notified Petitioner that a response was required within 10 days, and that if no response was received, the Motion for Summary Judgment would be granted. The Motion for Summary Judgment itself made clear that Respondent was requesting Petitioner's appeal be dismissed and the decision to terminate service be upheld without any evidentiary hearing.1/
In light of the clear language of both the Motion for Summary Judgment and the Administrative Law Judge's Order of May 5, 1993, it is concluded that Petitioner's failure to file a reply to the Motion was not excusable and that the Administrative Law Judge properly issued the Initial Decision on Motion for Summary Judgment. Additionally, although Petitioner continues to insist that ASP is doing business at the address shown on the Post Office Box Application, the record establishes that ASP is no longer located at that address. Since it is undisputed that Petitioner has not furnished a new address to the Postal Service,2/ no genuine issue of material fact exists which would justify holding a hearing and Respondent is entitled to judgment as a matter of law.3/
Since Petitioner failed to reply to Respondent's Motion for Summary Judgment and because Petitioner has not shown that a genuine issue of material fact exists, Petitioner's request that a hearing be held to allow him to present evidence in support of his position is denied. The Initial Decision upholding the termination of service to ASP at Post Office Box 1512, Horsham, PA 19044-1512 is now the Final Agency Decision of the Postal Service as provided in 39 C.F.R. § 958.9.
James A. Cohen Judicial Officer
1/ Under 39 C.F.R. § 958.3(d) an initial decision may be issued without an evidentiary hearing when there is no genuine or material issue of fact in dispute.