October 23, 1996
Appeal of
J. LEONARD SPODEK d/b/a NATIONWIDE POSTAL MANAGEMENT
Under Lease Agreement
PSBCA No. 3710
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
Glenn L. Smith, Esq.
OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION
Appellant has filed a motion seeking reconsideration of a portion of the Board's Opinion, J. Leonard Spodek d/b/a Nationwide Postal Management, PSBCA No. 3710, 96-2 BCA ¶ 28,457, in which the Board determined that Appellant had been properly charged with the responsibility for replacing the roof at the Abbeville, South Carolina Post Office, but that he was not liable for all of the costs incurred by Respondent in performing the work. In our Opinion, we concluded that the construction costs incurred by Respondent were $3,500 higher than would have been incurred had Appellant had the work performed. Because Appellant had not been given sufficient opportunity to have the work done, we concluded that Respondent's recovery of construction costs was to be reduced by that amount, from $25,547.52 to $22,047.52 (plus an additional reduction for administrative charges, not relevant here).
In his motion, Appellant argues that the amount of Respondent's recovery should be reduced by an additional $10,000 because the roof installed by Respondent carried only a one-year warranty. Appellant argues that had he had a roof installed by a local contractor, the roof would have carried a ten-year warranty, which he values at $10,000, rather than a one-year warranty. Appellant also points to what he contends were other deficiencies in the actual construction of the roof and renews his argument that Respondent be held responsible for maintaining the roof in the future.
In its reply to the motion, Respondent argues that the record contains no evidence concerning the value of a ten-year warranty -- other than unsupported statements made by Appellant in his motion. In addition, Respondent calls into question, as unreasonable on its face, Appellant's contention that the value of a ten-year warranty could be so large a percentage of the value of the entire roof -- i.e., $10,000 on a $22,000 roof. Finally, Respondent argues that the deficiencies in construction alleged by Appellant relate to portions of the roof that were not replaced at all and, therefore, should not be considered.
We agree with Respondent that the record does not provide us with a basis for establishing the value of a ten-year warranty or comparing it to the value of a one-year warranty. The letter which we accepted as establishing the amount to be deducted from Respondent's recovery did state that it included the cost of a ten-year warranty. However, the letter did not put any particular value on the warranty, and we are aware of nothing else in the evidentiary record of this appeal that would do so. Appellant's statement of the value of the ten-year warranty is not accepted as evidence in this matter since the record has been closed and, in any event, because the statement is unsupported by any independent evidence. We note also that the record does not establish the value of a one-year warranty, which we would need for comparison purposes. For this reason we do not accept Appellant's argument that Respondent's recovery should be further reduced.
We also decline, for the reasons stated in our initial Opinion, to decide the question of Appellant's responsibility for maintenance of the new roof. Deficiencies in construction of the new roof may be an issue if there is a future dispute with respect to maintenance of the roof, but it is not necessary to decide it in connection with the dispute before us in this appeal.
Accordingly, the motion for reconsideration is denied and the Board's original Opinion is affirmed.
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member