August 2, 1994

Appeal of

DUFFY LEASING CORP.

Under Contract No. HCR 10099(B)

PSBCA No. 3642

APPEARANCE FOR APPELLANT:

Steven Cayne

APPEARANCE FOR RESPONDENT:

Mark T. Corbly, Esq.

OPINION OF THE BOARD ON MOTIONS FOR SUMMARY JUDGMENT

            Appellant, Duffy Leasing Corp., has appealed the decision of the Contracting Officer awarding compensation for a trailer damaged by Respondent, United States Postal Service, in an amount less than that claimed by Appellant.

            It is undisputed that Respondent leased a trailer from Appellant; that it was "totaled" while in Respondent's possession; and that Respondent has admitted liability for the damage.  The parties disagree as to the proper method to be used in establishing the value of the trailer for the purposes of compensating Appellant for the loss.

            Appellant filed its motion for summary judgment because Respondent failed to file its Answer to the Complaint by the required date.  Respondent replied to the motion, contending that filing the Answer late was no basis for granting summary judgment against it, and filed a cross motion for summary judgment, arguing that its method of establishing the value of the trailer was correct.  In reply, Appellant argued that its method of establishing the value of the trailer should be accepted.  Both parties readily admit that there exists a genuine issue of material fact to be decided -- i.e., the correct method of establishing the value of the trailer.

            A motion for summary judgment may be granted only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.  Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); Rood Trucking Co., Inc., PSBCA Nos. 3121, 3132, 93-2 BCA ¶ 25,564; On Time Postal Services, Inc., PSBCA No. 2528, 90-2 BCA ¶ 22,698.

            In this case, both parties agree that the correct method of valuing the trailer is at issue in this appeal.  Neither party has established its method to be correct as a matter of law.  Further, although the Board does not condone the late filing of pleadings or other submittals, the fact that Respondent filed its Answer late does not provide a basis for judgment in favor of Appellant where there has been no showing that Respondent's late filing prejudiced Appellant's ability to prosecute its appeal.  Therefore, there is no basis for granting summary judgment in favor of either party.

            Accordingly, the cross motions for summary judgment are denied.

David I. Brochstein

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman