October 29, 2002

Appeal of

FRONTIER ASSOCIATES

LEASE AGREEMENT

PSBCA No. 4509

APPEARANCE FOR APPELLANT:

Robert L. Allman, II, Esq.

APPEARANCE FOR RESPONDENT:

Alfred J. Zwettler, Esq.

OPINION OF THE BOARD ON MOTION TO ENFORCE SETTLEMENT

            Appellant, Frontier Associates, has filed a motion asking the Board to award it the amount of $232,016.05 plus interest on the basis of a settlement allegedly reached by the parties.  Respondent, United States Postal Service, opposes the motion.

FINDINGS OF FACT

            For the purpose of deciding this motion, we make the following findings of fact:

            1.  This appeal was filed in December 1999 and relates to a dispute over Appellant's claim of entitlement to additional rent for a facility leased by Respondent in Brentwood, Pennsylvania (Appellant's Notice of Appeal; Appeal File, Tab 1).

            2.   From April 2000 until January 2002, at the parties' request, action on the appeal was stayed to allow settlement negotiations to take place.  In January 2002, Respondent advised the Board that settlement negotiations had been unsuccessful.  Thereafter, in an attempt to facilitate further settlement efforts, at the Board's suggestion the parties jointly selected an appraiser to provide a report of the fair market rental value of the leased premises for the period in dispute.  The appraiser provided the report in April 2002.  (Various status reports and Board Orders; Appellant's motion, Exhibit E).

            3.  Between May and July 2002, the Board stayed processing of the appeal, and counsel for the parties[1] exchanged correspondence, primarily by e-mail, relating to a possible settlement.  At one point it appeared that both counsel believed a settlement had been reached, although the correspondence between them does not reflect that final details had been worked out.  In July, however, counsel for Respondent indicated that there was continuing debate within the Postal Service concerning the settlement.  (Appellant's motion, Exhibits A-F).

            4.  In a filing received by the Board on August 6, 2002, counsel for Appellant stated that Respondent had "failed to complete the settlement" and that Appellant was unwilling to consent to a further extension.  Appellant requested that a briefing schedule be set.  Thereafter, on August 19, 2002, Appellant filed the motion that is at issue here.

DECISION

            In its motion, Appellant argues that the communications between counsel in the May-July period establish that a settlement had been reached by the parties.

            Respondent contends that Appellant has failed to establish the existence of, or the specific terms of, a final agreement between the parties settling this dispute.  Respondent also argues that Appellant has failed to show that Respondent's counsel had authority to enter into a settlement agreement, or to demonstrate ratification of any agreement by a Postal Service official with that authority.

            In the face of Respondent's assertion that no final agreement had been reached, it was incumbent on Appellant to have shown the existence of and the terms of such an agreement.  The communications between counsel, cited by Appellant, do not indicate that counsel believed that they had themselves finalized a settlement agreement, and Appellant has not even alleged the existence of any other direct communications between the parties related to the settlement.

            In any event, as argued by Respondent, Appellant has not shown that Respondent's attorney had the requisite authority to enter into a final settlement agreement.  Respondent is not bound by agreements made by an official without proper authority, and it is Appellant's burden to show that the official with whom it contends it agreed to a settlement had the requisite contracting authority.  Hartwig Transit, Inc., PSBCA No. 3464, 94-3 BCA ¶ 27,268.  Appellant has not specifically alleged or shown that Respondent's attorney had the necessary authority.

            Accordingly, Appellant's motion is denied.

David I. Brochstein

Administrative Judge

Vice Chairman

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

Norman D. Menegat

Administrative Judge

Board Member

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[1]   During this period, Respondent was represented by other counsel.  Responsibility for this appeal was transferred to current counsel in August 2002.