Appeal of P.S. Docket No. PF 97-269 - KENNETH TOMCZYK and CLASSIC CHESS AND GAMES, INC. and CLASSIC ELECTRONICS, INC.

Administrative Law Judges

In the Matter of the Complaint   	)  December 12, 1997        
Against                          	)
                                 	)
KENNETH TOMCZYK                  	)
        and                      	)
CLASSIC CHESS AND GAMES, INC.    	)
        and                      	)
CLASSIC ELECTRONICS, INC.        	)
2468 Harbour Cove Drive          	)
        at                       	)
Ft. Pierce, FL 34949-1561        	)  P.S. Docket No. PF 97-269


APPEARANCE FOR COMPLAINANT:		Christine M. Taylor, Esq.
					Civil Practice Section
					Law Department
					United States Postal Service
					Washington, DC 20260-1148


APPEARANCE FOR RESPONDENTS:		Richard D. Shapiro, Esq.
					Hellring Lindeman Goldstein & Siegal
					One Gateway Center
					Newark, NJ 07102-5386

POSTAL SERVICE DECISION

Respondents have filed an appeal from an Initial Decision of an Administrative Law Judge finding that Respondents are liable to the United States Postal Service under the Program Fraud Civil Remedies Act, 31 U.S.C. §3802(a)(1), for a total assessment and penalty of $16,123.98. The Initial Decision was issued pursuant to 39 C.F.R. §962.4(a), which provides for a decision based on the information contained in the Complaint if no Petition for Hearing is filed within thirty days of receiving the Postal Service's Complaint.

Respondents contend they did not receive the Complaint until after the Initial Decision was issued, and, therefore, they could not have filed a timely Petition for Hearing. According to Respondents, Complainant mailed the Complaint to an old address in Florida and the United States Postal Service failed to forward the mail to their New Jersey address in accordance with Respondents' properly filed change of address orders. Under these circumstances, Respondents argue that it is unfair and unreasonable for them to be found liable for an assessment and penalty without an opportunity to present their defense to the allegations of the Complaint. Complainant filed a reply to the appeal alleging that the individual Respondents received copies of the Complaint in New Jersey on June 23 and 25, 1997 and that there is no excuse for their failure to file a timely Petition for Hearing.⁽¹⁾

The record contains conflicting evidence concerning service on Respondents⁽²⁾ that can best be resolved at a hearing before an Administrative Law Judge at which the credibility of the witnesses can be assessed.⁽³⁾ Accordingly, this proceeding is remanded to the Administrative Law Judge for the limited purpose of conducting a hearing to take evidence on whether the Complaint was properly served on Respondents and whether there are reasonable grounds or extraordinary circumstances for their failure to file a timely Petition for Hearing. If the Administrative Law Judge determines that the Complaint was not properly served on Respondents, he shall retain jurisdiction over this matter and issue an Initial Decision on both that issue and the merits. If he determines that the Complaint was properly served on Respondents, he shall include his findings and conclusions in a further Initial Decision on this issue, and Respondents may appeal that decision to the Judicial Officer in accordance with 39 C.F.R. §962.21.

					James A. Cohen
					Judicial Officer

1. Respondents filed a reply to Complainant's reply on December 5, 1997. Complainant filed a Motion to Strike Respondents' Reply Brief because the rules of practice do not provide for the filing of reply briefs. However, the Judicial Officer has inherent authority to allow additional briefs, and while the same result would have been reached without the benefit of Respondents' Reply Brief, it was useful in understanding the differences between the parties. Therefore, Complainant's motion is denied.

2. The record includes a certified receipt for the Assigning Order and Referral of Complaint signed by Joe T. on August 4, 1997 in Rockaway, NJ and copies of certified receipts and re-delivery notices for the Complaint signed by Frank or Franklin Smith in Rockaway, NJ on June 23 and 25, 1997. The record also contains conflicting declarations by Kenneth Tomczyk, Frank Smith, Tim Vanderhoof and Thomas A. Ward.

3. Based on the parties' submissions and the record developed through this stage of the proceeding, the individuals who should be available to testify at the hearing includes, but is not limited to, Kenneth Tomczyk, Joe Tomczyk, Frank Smith, Thomas A. Ward and Tim Vanderhoof.