May 24, 1995
Appeal of
WANNA M. MILLER
Under Lease Agreement
PSBCA No. 3314
APPEARANCE FOR APPELLANT:
Richard S. Ombres, Esq.
APPEARANCE FOR RESPONDENT:
Robert L. Sawicki, Esq.
OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION
Appellant has filed a motion seeking reconsideration of the Board's earlier Opinion (Wanna M. Miller, PSBCA No. 3314, 95-1 BCA ¶ 27,292) in which we concluded that the term of the lease between the parties was 25 years.
Appellant first argues that the Board improperly gave weight to the contents of the advertisement seeking bids for the space, a document that did not become part of the contract terms. Appellant argues that the greatest weight should have been given, instead, to Appellant's testimony in which she stated that she understood that the term of the lease was only 20. Appellant also appears to be questioning the length of the base term of the lease. In this regard, Appellant seems to argue that the letter stating that dates were missing from paragraph 2B also implies that the length of the initial or base term of the lease was in doubt.
Appellant's second argument is that the Board failed to consider what Appellant views as the inequity and unconscionability of Respondent's interpretation, in that the rate being paid Appellant under the lease, particularly during the last five years, was substantially below current market rates estimated by both parties' experts. Appellant contends that the low rate being paid Appellant under the lease was unconscionable and, for that reason, that the Board should interpret the lease as establishing only the shorter lease period.
Respondent argues that the Board properly determined that only the beginning and ending dates were omitted when Appellant and her husband signed the lease, but that the term of the lease (five years base plus four, five-year options) was filled in at the time. Thus, Respondent argues that the Board correctly concluded that the lease term was 25 years and that Appellant is not entitled to any additional compensation for the period covered by the last five-year renewal option.
Having considered the parties' arguments we conclude that the appeal was properly decided and that Appellant's motion for reconsideration should be denied. As to Appellant's first argument, contrary to Appellant's contention, the Board did not read the terms of the advertisement for space into the contract. Rather, the advertisement for space was used only as evidence of what Respondent was seeking in the way of lease terms, which was considered an indication of the parties' intent at the time. Appellant's testimony was not given great weight because she offered no specific testimony, such as testimony that Appellant and her husband offered terms that varied from those sought by Respondent, or testimony regarding any negotiations that might have resulted in different lease terms. Her testimony was only as to her "understanding" of the term of the lease, without any specific basis for that understanding. Moreover, Appellant was unable to testify as to which parts of the agreement to lease were blank at the time she and her husband signed it. Accordingly, we conclude that Appellant has provided no basis for us to revise our original conclusions as to the contents of the lease at the time it was executed by Appellant and her husband.
As to Appellant's second argument, we see no basis for concluding that the lease signed by the parties was unconscionable. In general, any alleged unconscionability is to be determined as of the time the lease was entered into. See Glopak Corp. v. United States, 851 F.2d 334, 338 (Fed. Cir.1988); U.C.C. § 2‑302; Restatement, Contracts 2d § 208.
In this appeal we cannot find that the lease agreement was unconscionable when made. Appellant and her husband were not forced to submit an offer, and they apparently believed the amount they offered was a fair price. Further, there is no evidence of any oppressive or coercive actions by Respondent. See Export Packing Division of Novo Corp., ASBCA Nos. 18376, 18377, 18482‑18484, 75‑1 BCA ¶ 11,291. Finally, the fact that unanticipated inflation made the bargain less favorable to Appellant does not, by itself, support a finding that the lease was unconscionable when made. See, e.g., William H. Houser, PSBCA No. 2466, 90-1 BCA ¶ 22,504; Gene Peters, PSBCA No. 999, 83-2 BCA ¶ 16,694; Brubrad Co. v. U.S.P.S., 404 F.Supp 691 (E.D.N.Y. 1975), aff'd w/out opn 538 F.2d 308 (2d Cir. 1976), cert. den. 429 U.S. 834.
Accordingly, Appellant has not shown that the Board was incorrect in its original Opinion in this appeal. Appellant's motion for reconsideration is 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