Appeal of THE NATIONAL REGISTER OF MANUFACTURERS and THE NATIONAL REGISTER 974214 ONTARIO INC. MEDIA PUBLISHING CORPORATION DIANE PORTELANCE

February 18, 2000

In the Matter of the Complaint Against                          	  	    
					
THE NATIONAL REGISTER OF         	
MANUFACTURERS                   	
and                      		
THE NATIONAL REGISTER            	
at                      		
P. O. Box 253                    	
Fineview, NY 13640-0253          	
					
974214 ONTARIO INC.              	
RR#4                             	
Picton, Ontario Canada K0K2T0    	
					
MEDIA PUBLISHING CORPORATION     	
5900 Young Street, Suite 402     	
Willowdale, Toronto Canada M2N3T8	
					
DIANE PORTELANCE                 	
RR#4                             	
Picton, Ontario Canada K0K2T0    	    

P.S. Docket No. FR 95-252


APPEARANCE FOR RESPONDENT
MEDIA PUBLISHING CORP.:			Michael Petreikis
					26711 University Avenue, NE
					Isanti, MN  55040-5263

APPEARANCE FOR COMPLAINANT:		Janessa L. Grady, Esq.
					Civil Practice Section
					United States Postal Service
					475 L'Enfant Plaza, SW
					Washington, DC  20260-1127

POSTAL SERVICE DECISION ON MOTION TO APPEAL
AND REOPEN CASE

By Order dated August 29, 1995, Respondents The National Register of Manufacturers, The National Register, 974214 Ontario Inc., Media Publishing Corporation and Diane Portelance (hereinafter "Respondents") were deemed to be in default and to have waived hearing and further procedural steps. As a result, False Representation Order No. 95-83 and Cease and Desist Order No. CD-3889 were issued against Respondents.

On August 17, 1999, Mr. Michael Petreikis, a/k/a Stanley King and Michael Mondor, filed a Motion to Appeal and Reopen Case (hereinafter "Motion") on behalf of Respondent Media Publishing Corporation (hereinafter "Respondent MPC"), contending that Respondent MPC had not received proper notice of the proceedings against it, and, therefore, should not have been deemed in default. Complainant opposes the Motion and argues that Respondent MPC had both actual and constructive notice of these proceedings.⁽¹⁾

Background

On July 25, 1995, Complainant filed a Complaint alleging that the Respondents were engaged in conducting a false billing scheme in violation of 39 U.S.C. §3005. Individual copies of the Complaint and a Notice of Answer and Hearing were thereafter sent to all Respondents by certified mail. Respondent MPC’s copy was mailed to the captioned address, 5900 Young Street, Suite 402, Willowdale, Toronto, Canada M2N3T8 and later resent to that address by regular mail when it was returned unclaimed. Service on Respondents was completed on August 7, 1995, and since no Answer had been filed within the time allowed by the Notice of Answer and Hearing issued pursuant to the Rules of Practice in Proceedings Relative to False Representation and Lottery Orders, 39 C.F.R. Part 952, Respondents were deemed to be in default.

Mr. Petreikis asserts in his filings that, using the alias Stanley King, he acted as Respondent MPC’s agent from approximately December, 1994 through the beginning of 1995 (Supplement to the Motion to Reopen Case and Appeal (Supp.) at 3-7)⁽²⁾ and that Respondent MPC’s true mailing address was 5900 Yonge Street, Suite 402, Willowdale, Ontario, Canada (Motion at 2-3). According to Mr. Petreikis, his relationship with Respondent MPC ended when Respondent MPC decided to discontinue its involvement in the directory publication business (Supp. at 7). At that time, Mr. Petreikis arranged for Respondent Diane Portelance to assume control of Respondent MPC’s directories and incorporate any advertisements already sold into her own directories (id.).

Decision

The parties have presented several arguments concerning the propriety of the service on Respondent MPC and whether it received proper notice of the proceedings. However, it is not necessary to determine whether Respondent MPC received either actual or constructive notice of the Complaint in August, 1995. By his own admission, Mr. Petreikis was not associated with Respondent MPC at the time of service of the Complaint or any time thereafter. He has presented no evidence that he is authorized to represent Respondent MPC in these proceedings or raise the question of improper service. To the contrary, Mr. Petreikis asserts that his affiliation with Respondent MPC ended when Respondent Portelance assumed control of the directories published by Respondent MPC prior to the issuance of the Complaint and default determination. Furthermore, there is no evidence that the Postal Service is seeking to enforce the issued Orders against Mr. Petreikis in an administrative action within the jurisdiction of the Judicial Officer.

Accordingly, as Mr. Petreikis lacks the necessary standing to file the Motion to Appeal and Reopen Case on Respondent MPC’s behalf, the Motion is denied.⁽³⁾

				James A. Cohen
				Judicial Officer

¹ On October 21, 1999, Mr. Petreikis filed a motion arguing Complainant should be held in default and the proceedings against Respondent MPC should be dismissed because Complainant's response opposing the Motion to Appeal and Reopen Case was not timely filed. The response was properly and timely filed via facsimile. National Register of Manufacturers, et al., P.S. Docket No. FR 95-252 (Order, Nov. 15, 1999). Complainant also mailed copies of the response to Mr. Petreikis and the Judicial Officer on October 15, 1999 (id.). Unless an order specifies that a document must be received by a certain date, documents are considered filed when they are placed in the mail. Com-Tel Directories, Inc., et al., P.S. Docket No. FR 95-276 (I.D. June 12, 1996), at 3; United States Testing Authority, P.S. Docket No. 14/77 (J.O. Order Sept. 12, 1984).
² In his Supplement to the Motion to Reopen Case and Appeal, Mr. Petreikis states that he was Respondent MPC's agent from December, 1993 to February, 1994 (Supp. at 9). Mr. Petreikis' exhibits, however, show that the actual dates were from late 1994 through part of 1995. The application for the post office box and mailing permit in Niagara Falls, NY were both signed on January 6, 1995 (Ex. 1). In April, 1995 Mr. Petreikis represented himself as Respondent MPC's agent when he signed the Form 1583 authorizing a Commercial Mail Receiving Agency to receive and forward mail for Respondent MPC (Ex. 3). Finally, the Articles of Incorporation for Respondent MPC filed by Mr. Petreikis as an attachment to his Motion to Appeal and Reopen Case were not filed with the Island of Nevis authorities until October, 1994.
³ In a Motion to Dismiss filed in this proceeding, Mr. Petreikis sought to have "all charges in P.S. Docket No. FR 95-252" and the indictments brought against him in a New Hampshire United States District Court dismissed. Mr. Petreikis also lacks standing to seek dismissal of this proceeding, and his request for dismissal of the criminal charges is well beyond the jurisdiction of the Judicial Officer.