Secretary of Labor (MSHA) v. Cicconi Coal Company (ALJ decision, July 31, 1984)

Plain-English summary

MSHA sought a $40 penalty against Cicconi Coal Company for two alleged violations at the Brownsville Mine. Cicconi answered an initial show-cause order but did not claim two later orders sent to its supplied address. Judge Charles C. Moore Jr. held that refusing properly addressed mail did not prevent service. He entered a default, affirmed both citations, and ordered Cicconi to pay $40 within 30 days. The decision does not identify the standards underlying the citations.

Decision snapshot

• Cited standards: The decision does not identify the violation standards; it discusses 29 C.F.R. § 2700.5(v) on filing addresses.
• Outcome: Two citations affirmed by default; $40 penalty assessed.
• Key point: Refusing to claim mail sent to the respondent's supplied address did not defeat service.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE: OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
JUL 31 1984
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY
PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No: PENN 83-158
Petitioner : A/O No: 36-06472-03501
:
v. : Brownsville Mine
:
:
CICCONI COAL COMPANY,
:
Respondent
:

DECISION
Before: Judge Moore
The civil penalty proceeding was initiated by the Secretary's petition filed July 5, 1983, which alleged two violations and sought a penalty in the amount of $40. When respondent did not file a timely answer, Judge Merlin issued a Show Cause Order in October of 1983. The respondent filed a hand written answer to that Show Cause Order on December 7, 1983.
On February 7, 1984, I issued a Prehearing Order to which the Solicitor responded. The respondent refused to claim that order from the Post Office Department. On June 25, 1984, I issued a Show Cause Order ordering respondent. to show cause why it should not be held in default for its failure to respond to the Prehearing Order. Respondent failed to claim that Order to Show Cause. The two orders that respondent has failed to claim from the Post Office Department are attached to the file.
Commission Rule 29 C.F.R. 2700.5(v) states:
"The first document filed, and every document filed by a lawyer or other representative, shall include the parties' or other filing persons' address and business telephone numbers. Written notice shall be promptly given of any change of address or business telephone number".
The purpose of the rule is so that a respondent can be served with process. The rule would be totally thwarted if

1829 a respondent could avoid service by merely refusing to claim properly addressed mail. I hold that the refusal to claim mail addressed to an address that a respondent has supplied, constitutes service.
I therefore hold respondent in DEFAULT and order that he pay, within 30 days, a civil penalty of $40 to MSHA. I also affirm both citations.

Charles C. Moore, Jr.,
Administrative Law Judge

Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail) Mr. C.M. Harasty, Cicconi Coal Company, 500 Middle Street, Brownsville, PA 15417 (Certified Mail)

/db

*U.S. GOVERNMENT PRINTING OFFICE: 1984 421 569 13603

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