In the Matter of the Petition by ) August 15, 1995 ) MICHAEL T. HUDAK ) P.O. Box 2024 ) Beverly Hills, CA 90213-2024 ) ) ) Proposed Termination of Box ) Caller Services for P.O. Boxes ) 2024 and 16801 ) P.S. Docket No. POB 95-231 APPEARANCE FOR PETITIONER: Michael T. Hudak, Pro Se aka Michael T. M. Hart, III P. O. Box 2024 Beverly Hills, CA 90213-2024 APPEARANCE FOR RESPONDENT: Jeannine H. Walter, Esq. Consumer Protection Law United States Postal Service 475 L'Enfant Plaza, SW Washington, DC 20260-1144
This proceeding arises out of a Petition filed by Mr. Hudak on June 9, 1995, appealing the Postmaster's Determination of June 2, 1995 to terminate service for P. O. Box 2024 and P. O. Box 16801, both in Beverly Hills, CA. The Postmaster's letter stated that service was being terminated pursuant to provisions of the Domestic Mail Manual that prohibit use of a post office box in connection with a scheme or enterprise that violates the law, or that breaches an agreement made by the customer to discontinue the specified activity.
On July 12, 1995, Respondent, the United States Postal Service, filed its Answer to the Petition, along with a Motion for Summary Judgment. Attachments to the motion included sworn declarations from the postmaster, the postal inspector who investigated this case (Christine Gaines), and a product manager employed by The Upjohn Company (Bruce Houtman), along with many supporting documents. By Order of July 14, 1995 Petitioner was given until August 14, 1995 to reply to the motion. Petitioner responded with a letter asking for a continuance because no one had yet complied with his earlier request for documents pertaining to this matter. Because it appeared to the undersigned that the many documents attached to the Motion for Summary Judgment satisfied Petitioner's original request and would provide any information necessary for him to reply, the request for continuance was denied, by Order of July 26, 1995. Petitioner's reply to the Motion for Summary Judgment, in essence denying that his use of the boxes violated any laws, was received on August 10, 1995.
The following Findings of Fact are based on the materials submitted by Respondent with its motion, and by Petitioner with his Petition.
FINDINGS OF FACT
1. On February 8, 1990, Petitioner rented P.O. Box 2024 for Windsor Group, Ltd., signing the name Michael T. Hart, III. On August 4, 1992, he rented P.O. Box 16801 for M. Thomas Hudak, IV, signing that name.
2. In an interview on December 1, 1994, Petitioner told Postal Inspector Gaines that Michael Hart was his stage name as a professional actor. (Gaines Decl. p. 2.) Petitioner has used the names Michael Hudak, Michael Hart, and Michael T. M. Hart, III, in submitting letters in this case, and has never denied that Michael Hart, Michael Hudak, and M. Thomas Hudak are all the same person.
3. On October 14, 1994, the Postal Inspection Service received a complaint from The Upjohn Company, Kalamazoo, Michigan, alleging mail fraud activity through the use of post office boxes 2024 and 16801 in Beverly Hills, California. (Gaines Decl. p. 1.)
4. Upjohn ran two promotional programs for its hair growth product, ROGAINE. Prospective customers could call an 800 number and receive a certificate personalized with the name and address provided by the customer. If the customer then visited a physician for consultation about hair loss, and had the physician provide his/her name and address and sign the certificate, the customer could mail the certificate back to Upjohn and receive a $10 check. One of the terms of this rebate program, as printed on the certificate itself, is that it was limited to one check per person. (Houtman Decl. Ex. D.) The second promotion involved $10 or $15 checks sent by Upjohn to certain prospective customers, made payable to "Any Pharmacy Selling ROGAINE." The customer could then give this check to a pharmacist in exchange for a credit toward the purchase of ROGAINE, and the pharmacist could then negotiate the check. (Houtman Decl. p. 1-2.)
5. Upjohn alleged that Mr. Hudak, using many fictitious names, initiated hundreds of contacts with Upjohn, and received over 200 checks from Upjohn in response to the two ROGAINE promotions. The addresses provided by Mr. Hudak for all the fictitious names, and the addresses to which all the checks were sent, were Post Office Boxes 2024 and 16801 in Beverly Hills, California. In the case of the checks payable to pharmacists, Upjohn alleged that Mr. Hudak cashed, or deposited, these checks himself by endorsing with a fictitious name, rather than using the checks as partial payment to a pharmacist. (Houtman Decl. p. 2-4.)
6. Postal Inspector Gaines interviewed Petitioner by telephone on December 1, 1994. Petitioner admitted mailing rebate certificates to Upjohn, using fictitious names, and that he had not visited the doctors named on the certificates. He also said he was no longer receiving rebate checks, but that he was receiving discount coupons to give to pharmacists. He said that he would cease these activities, and asked how much money he owed Upjohn. (Gaines Decl. p. 2-3.)
7. Inspector Gaines interviewed Petitioner by telephone again on January 19, 1995 and told him the amount of loss claimed by Upjohn. Petitioner admitted making the calls to Upjohn's 800 number that resulted in rebate certificates being mailed to his post office boxes. (Gaines Decl. p. 3.)
8. On February 10, 1995, Inspector Gaines interviewed Petitioner in her office. Petitioner said he was willing to repay Upjohn for the checks he had received, but not for Upjohn's ancillary costs. He said he would return on February 17, 1995 with a check and would sign a statement of voluntary discontinuance. (Gaines Decl. p. 3-4.)
9. On February 17, 1995, Petitioner returned to Inspector Gaines' office with a check for $1155 drawn on the Wells Fargo Bank account of Michael T. Hudak. He also signed a statement of voluntary discontinuance, which included the following:
I, M. T. HUDAK, have been submitting claims for the Rogaine
promotional program to Upjohn Company, using fictitious names. I have been informed by a representative of the U.S. Postal Inspection Service
that my use of the mails in the above-described way may constitute
a violation of the mail fraud and/or false representation laws, 18
U.S.C. 1341, 1342 and 39 U.S.C. 3005.
After considering what I have been doing in relation to the elements
of the above statutes, I have decided to voluntarily discontinue and
abandon my submission of these, or any similar, claims and abandon
all use of the mails in connection with the submission thereof. I
further agree to reimburse Upjohn Company in the amount of
$1155.00.
This statement is signed by M. T. Hudak, and dated February 17, 1995. (Motion for Summary Judgment, Atch. B. p. 27.)
10. The check for $1155 was deposited by Upjohn, and was thereafter returned bearing a stamp, "Drawn Against Non-Sufficient Funds." (Houtman Decl. p. 5.)
11. Since February 17, 1995, the date he signed the Statement of Voluntary Discontinuance, Petitioner has cashed 32 Upjohn checks received at P.O. Box 2024, and 26 checks received at P.O. Box 16801. (Houtman Decl. p. 5.)
CONCLUSIONS OF LAW
1. The Domestic Mail Manual (DMM) § D910.7.2a. states that:
A postmaster may terminate post office box service if the
box customer . . . violates any regulation or condition on
the care or use of the box.
2. DMM § D910.3.6 states:
A post office box may not be used for, or in connection with,
a scheme or enterprise that violates any federal, state, or
local law; breaches an agreement with a federal, state, or
local agency whereby the box customer has agreed to
discontinue a specified activity; violates or attempts to evade
any order of a court or administrative body.
3. The Postal False Representation Statute, 39 U.S.C. §3005, prohibits, "conducting a scheme or device for obtaining money or property through the mail by means of false representations, . . .."
4. A grant of summary judgment is proper when there are no issues of material fact in dispute and when, as a matter of law, the moving party is entitled to judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of establishing the absence of a genuine issue of fact and, if that burden is met, the opposing party must counter with something more than "mere denials or conclusory statements." Mingus Contractors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157-59; Fed. R. Civ. P. 56(e).
5. By the sworn statements and other documents supporting its motion, particularly the February 17, 1995 statement signed by Petitioner, the Respondent has carried its burden to establish the absence of any genuine issue of material fact concerning the allegation that Petitioner used his post office boxes in connection with a scheme that violates 39 U.S.C. §3005. The Declaration of Mr. Houtman, and the fact that Petitioner's $1155 check to Upjohn bounced, also establishes the absence of any genuine issue of material fact concerning the allegation that petitioner breached an agreement with the U.S. Postal Service.
6. In response to the motion, Petitioner submitted no contradictory evidence. His letter, which is unsworn, is a somewhat oblique denial of some of the allegations, but it is not sufficient to demonstrate that any genuine issue of fact exists.
7. The Postmaster's Determination to close Petitioner's post office boxes
based on violation of DMM § D910.3.6 is sustained. Accordingly, Respondent's
Motion for Summary Judgment is granted, and the Petition is dismissed.
Bruce R. Houston Acting Chief Administrative Law Judge