December 19, 2000
Appeal of
J. LEONARD SPODEK
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENTS
(San Antonio, TX Stations)
PSBCA No. 4375
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
S. Brent Baker, Esq.
OPINION OF THE BOARD
Appellant, J. Leonard Spodek d/b/a Nationwide Postal Management, filed a timely appeal of a final decision of a contracting officer denying Appellant’s claim for the costs of servicing the air conditioners at two post offices in San Antonio, TX. The parties elected to have the appeal processed on the record, pursuant to 39 C.F.R. §955.12. Both entitlement and quantum are at issue.
1. On July 1, 1986, Respondent, United States Postal Service, entered into a five-year lease with Appellant’s predecessor-in-interest for the Highland Hills Station in San Antonio, TX. The lease contained two five-year renewals exercisable at the option of the Postal Service. Both options were exercised. (Appeal File Tabs (AF) 1, 2, 4).
2. On August 1, 1986, Respondent entered into another five-year lease with Appellant’s predecessor-in-interest for the Hackberry Post Office, also in San Antonio, TX. This lease also contained two five-year renewal periods, which were exercised by the Postal Service. (AF 5, 6, 8).
3. On July 15, 1992, Appellant purchased both the Highland Hills Station and the Hackberry Station and assumed the lessor’s responsibilities under the leases (AF 3, 7).
4. Both leases contained a maintenance rider that stated, in relevant part:
(b) The Postal Service shall be responsible for ordinary repairs to and maintenance of the demised premises except for those repairs that are specifically made the responsibility of the lessor in this lease. The Postal Service’s responsibilities as stated herein shall be fulfilled at such time and in such manner as the Postal Service considers necessary to keep the demised premises in proper condition . . ..” (AF 1, 5).
5. In March of 1993, Appellant engaged an air conditioning contractor to inspect the HVAC systems of the Highland Hills and Hackberry Post Offices. Thereafter, Appellant had a contractor service the air conditioning units’ air filters at both post offices once annually in the years 1995-1998. (AF 10-16).
6. On March 8, 1999, Appellant submitted claims in the amount of $340.96 for the Hackberry Station and $404.26 for the Highland Hills Station, for annually servicing the filters of the air conditioning equipment in 1995-1998, as well as inspecting the units in both stations in 1993 (AF 13, 17, 21).
7. By final decision dated April 30, 1999, the contracting officer denied the claims, finding that the work performed by Appellant was preventive maintenance that was not the responsibility of Respondent under the lease. The contracting officer also determined that Appellant failed to demonstrate that a properly authorized Postal Service employee had requested the work. (AF 21). Appellant filed a timely appeal of this final decision (AF 22).
Appellant argues that he performed the work on the air conditioning units at the Hackberry and Highland Hills Stations in the mistaken belief that it was the lessor’s responsibility under the lease to perform such work. Appellant further argues that a Postal Service employee requested the work, although he cannot remember the date of the request, or the name of the employee making the request.
Respondent argues that the service provided by Appellant on the two air conditioning units was preventive maintenance that is not covered by the lease and is not the responsibility of Respondent. Respondent further argues that no one authorized by Respondent requested the work from Appellant and that he voluntarily provided the service.
Under the contract, Respondent had the right to fulfill its maintenance responsibilities “. . . at such time and in such manner as the Postal Service considers necessary to keep the demised premises in proper condition” (Finding of Fact No. 4). This language gives Respondent considerable discretion in deciding how to meet its maintenance obligations. N.J. Hastetter, Trustee for Thomas and Judith Hastetter, PSBCA No. 3064, 93-2 BCA ¶ 25,809, recon. den. 94-1 BCA ¶ 26,421. Assuming without deciding that the maintenance work at issue here was the lessee’s responsibility, Appellant, as the party asserting the claim, has the burden of proving by a preponderance of the evidence that Respondent has failed to exercise its discretion in a reasonable manner. N.J. Hastetter, Trustee for Thomas and Judith Hastetter, PSBCA No. 3064, 93-2 BCA ¶ 25,809, recon. den. 94-1 BCA ¶ 26,421.
Appellant has offered no evidence that the work Appellant performed was necessary at the time it was performed. Thus, Appellant has not shown that he performed the work because Respondent was neglecting its maintenance obligations and that such neglect represented an unreasonable exercise of Respondent’s discretion in determining when and how to fulfill its maintenance responsibilities.
Moreover, Appellant has not offered any evidence that he ever received written direction to perform any work on the air conditioning units of the facilities. Although Appellant claims that an unknown employee of the Postal Service called him “many years back” and requested the work, he has not shown that an authorized employee of Respondent directed him to perform the work, thereby creating an obligation for Respondent to reimburse Appellant. See Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380, 384 (1947); SAE Americon, PSBCA No. 3866, 00-1 BCA ¶ 27,038.
Lacking evidence of any need to perform the work that Appellant accomplished, or a written direction from an authorized representative of Respondent to perform the work, Appellant voluntarily performed the work and, therefore, is not entitled to reimbursement under the terms of the lease. See Paoli Plaza Investment Corporation, PSBCA Nos. 3711, 4057, 98-1 BCA ¶ 29,445 at 146,186; Nationwide Postal Management, PSBCA No. 3988, 98-1 BCA ¶ 29,364 at 145,973.
Accordingly, this appeal is denied.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman