Appeal of

J. LEONARD SPODEK
NATIONWIDE POSTAL MANAGEMENT

LEASE AGREEMENT
(Mt. Airy Station, Philadelphia, PA
PBCA Nos. 4206, 4217 & 4310

APPEARANCE FOR APPELLANT:
J. Leonard Spodek

APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.

OPINION OF THE BOARD ON MOTION FOR CLARIFICATION

            Appellant has requested clarification of our May 31, 2000 Opinion in these appeals (J. Leonard Spodek d/b/a Nationwide Postal Management, PSBCA Nos. 4206, 4217 & 4310, 00-2 BCA ¶ 30,979).  Specifically, Appellant has requested that the Board respond to the following issues:

            (1)  Is the United States Postal Service responsible to “remove all furniture, cases, . . .” when interior painting is done at a facility?

            (2)  Is “plaster patch” always an item that must be accomplished prior to painting or can it possibly be the result of the negligence of the Postal Service?

            (3)  Who is responsible for “Cleaning high pressure water . . .” or power washing?

            (4)  Is the Appellant responsible for the cost associated with the replacement of “sewer vent covers”?

            In addition, Appellant requests that the Board assign a dollar amount for all of the items of repair and/or replacement that the Postal Service must reimburse the Appellant for in these appeals.

            Appellant’s request for clarification clearly goes beyond those issues raised by the parties and addressed by the Board in the original proceeding.  For example, Appellant requests the Board to assign dollar amounts for the items of repair when the original opinion considered only entitlement issues.  In addition, Appellant has asked for guidance which goes beyond the issues presented in these appeals (i.e., whether plaster patching is always an item that must be accomplished prior to painting even if it could “possibly be the result of negligence of the Postal Service”), rather than asking for clarification of the specific grounds on which the Board’s decision was based.  As such, Appellant’s questions are beyond the scope of clarification and will not be considered herein.

            However, in response to Appellant’s request, Respondent joined in the request for clarification and stated that the parties would benefit in their negotiations of quantum from the Board’s clarification of certain issues still in dispute.  Respondent worded and limited the questions to issues raised in the original proceeding.  Accordingly, this Opinion addresses the following items of work at the Mount Airy facility, as stated by Respondent:

            (1)  Removal of furniture associated with painting the interior of the facility and replacing ceiling tiles (Work Order No. 3.01).

            (2)  Plaster patching associated with the interior painting of the facility (Work Order No. 3.01).

            (3)  High pressure washing of loading dock canopy, to remove flaking paint (Work Order No. 3.00).

            (4)  Replacement of sewer vent covers in the parking lot area as part of asphalt repairs (Work Order No. 3.00).

            In the original Opinion we held that Respondent was entitled to “recover the cost of Work Order Nos. 3.00, 3.01 and 3.02, less those costs associated with exterior painting, . . ..”  Id., at 152,879.  The cost of removing and replacing furniture and plaster patching associated with painting the interior walls, as well as the cost of replacing sewer vent covers after performing asphalt repairs to the parking lot area were specifically identified in Work Order Nos. 3.00 and 3.01 (see item numbers 154 and 031 in Work Order No. 3.01, and “list of negotiated items” in Work Order No. 3.00, at Appeal File 4217, tabs 38 & 39).  Thus, Respondent is entitled to recover for these costs^[1].

            Respondent is not entitled to recover the costs of high pressure washing the loading dock canopy to remove flaking paint.  In our decision we held that Respondent failed to demonstrate that repainting the exterior surfaces of the post office fell within Appellant’s responsibility to maintain the premises in good repair and tenantable condition.  Id., at 152,879.  Respondent argues that this work was “not necessarily part of the costs associated with painting.”  However, the work order itself states “paint steel decking on loading dock following power washing” (Appeal File 4217, tab 38).  Clearly, this work was done to prepare the surface prior to repainting.  Although Respondent argues that removal of flaking paint was necessary for safety reasons (i.e., flaking paint may get in employees’ eyes), Respondent presented this same argument to justify the need for repainting the surface and it was rejected by the Board in its decision.

            In conclusion, Respondent is entitled to be reimbursed its costs of removing furniture, plaster patching interior surfaces and replacing sewer vent covers in the parking lot at the Mount Airy facility.  Respondent may not recover its costs of pressure washing the loading dock canopy.  Our opinion is clarified to the extent indicated above, and in all other respects is affirmed.

William K. Mahn
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
David I. Brochstein
Administrative Judge
Vice Chairman

[1]   Indeed, our Opinion specifically noted the need to plaster patch the interior walls before painting and to replace sewer vent covers.  Id., at 152,874 (see Finding of Fact Nos. 6 and 8).