PSBCA No. 5414
June 25, 2009
Appeal of
RICHARD WERNER
LEASE AGREEMENT
PSBCA No. 5414
APPEARANCE FOR APPELLANT:
Richard Werner
APPEARANCE FOR RESPONDENT:
Barbara H. Cioffi, Esq.
Law Department
United States Postal Service
OPINION OF THE BOARD
Appellant, Richard Werner, has appealed from the denial of three monetary claims asserted under his lease with Respondent, United States Postal Service. At the election of the parties, the appeal is being considered on the record, which consists of the pleadings, the appeal file, stipulations by the parties, Appellant’s filing with the Board dated April 10, 2008, (containing Exhibits A–E), two photos submitted by Appellant, and a declaration by the Postmaster. Respondent submitted a post hearing brief. Although afforded an opportunity to do so, Appellant did not file a post hearing brief. Both entitlement and quantum are at issue.
Findings of Fact
1. On September 23, 2005, Appellant and Respondent entered into a five year lease for a term beginning March 1, 2006, and ending February 28, 2011, for space to be used as the Newport, Minnesota Post Office (Appeal File, Tab (AF) 4; Stipulation (Stip.) 19). Respondent had leased the premises from Appellant under a separate lease for the 5 years preceding the current lease (AF 4; Stip. 9-0).
2. Pursuant to the Lease, Appellant was responsible for the building maintenance (AF 4, p. 24, ¶5, Other Provisions). Appellant provided a cleaning person, who cleaned the post office as well as other parts of the building three times per week (Declaration of M. Pardee (Pardee Decl.), ¶20).
3. The Lease also included a Maintenance Rider that provided in relevant part that
[Appellant] shall, except…for damage resulting from the act or negligence of Postal Service agents or employees, maintain the demised premises, including the building and any and all equipment, fixtures, systems, and appurtenances, whether severable or non-severable, furnished by [Appellant] under this Lease, in good repair and tenantable condition during the continuation of the lease. [Appellant’s] duties include repair and replacement as necessary.
* * *
For the purpose of so maintaining said premises and property, [Appellant] may at reasonable times, and upon reasonable notice to the facility manager, enter and inspect the same and make any necessary repairs thereto.
(AF 4, p. 31; Stip. 22, 23).
4. The Maintenance Rider also provided that whenever Respondent determined there was a need for maintenance or repair that was Appellant’s responsibility under the lease, Appellant was required to perform the maintenance or repair. Respondent was to give written notice of the required work and specify a time for its completion. (AF 4, p. 32, ¶10; Stip. 24).
5. Appellant was responsible for providing a water system and for paying the recurring water charges for the leased premises (AF 4, p. 35). Respondent does not pay for water service as a charge separate from its monthly rent (Pardee Decl., ¶5).
6. Two employee restrooms are located within the leased premises (Pardee Decl., ¶18). At some time prior to January 29, 2007, Appellant received a water bill for the portion of the building that included the restrooms in the leased premises that was higher than he thought it should be.[1] As a result he investigated the situation and discovered that a toilet in the women’s restroom of the leased premises was running and needed repair (Complaint, p. 3).
7. Prior to the toilet being repaired Appellant’s handyman visited the post office to look at the leaking toilet and, afterwards, instructed the Postmaster to put an “Out of Order” sign on the men’s bathroom door. Appellant’s cleaning person subsequently informed the Postmaster that the leaking toilet was actually in the women’s bathroom. Prior to her conversations with Appellant’s handyman and cleaning person, the Postmaster had no knowledge of the running toilet nor had she been advised by any other postal employee that a toilet was running. (Appellant’s April 10, 2008 filing with the Board, Exhibits B, E; Pardee Decl., ¶21).[2]
8. By letter dated January 29, 2007, Appellant submitted an invoice to the Postmaster for $2,873.70 in damages. Specifically, Appellant sought $1,120 to repair stucco on the rear of the building, $783 to repair the roof overhang and $970.70[3] for excessive water usage. (AF 7; Stip. 26). The record contains several photographs which show a roof overhang that appears to be in some disrepair along its right front section (AF 6). The only damaged stucco shown in the record is a small section immediately adjacent to the overhang.
9. Appellant claimed that the building damages were caused by postal trucks backing into the building and the excessive water usage was due to Respondent not reporting a leaking toilet in the women’s bathroom in the leased premises (AF 7; Stip. 27).
10. The Newport Post Office is served by its own local delivery vehicles and by larger vehicles operated by an independent contractor (Pardee Decl., ¶¶12, 15, 17; Complaint, p. 2). The local delivery vehicles are not tall enough to have caused the damage to the rear overhang as alleged by Appellant (AF 6, p. 41; Pardee Decl., ¶13). The independent contractor’s large vehicles are tall enough to have come in contact with the rear overhang. However, since the Newport Post Office does not have a loading dock, the practice of the larger delivery trucks was to pull up parallel to the building thereby avoiding the rear overhang and stucco. Postal employees would then transfer the mail into the building using hampers as opposed to having the trucks back up to the building when loading and unloading. (Pardee Decl., ¶¶14, 15). The record contains no evidence that establishes that any vehicle owned or operated by Respondent or its agents caused the damage alleged by Appellant.
11. By letter dated March 27, 2007, Appellant submitted a second invoice to the Postmaster for the same damages (AF 8; Stip. 28).
12. By letter dated April 10, 2007, Appellant submitted the same damages as a claim to the contracting officer (AF 9; Stip. 29).
13. By final decision dated April 18, 2007, the contracting officer denied the claim (AF 10; Stip. 30). The contracting officer found that the building damage could not have been caused by the postal trucks because they do not reach the roof and “rarely back near the building”. Furthermore, with respect to the excessive water usage claim, he concluded that the Postmaster was not aware of the water leak. (AF 10).
14. By letter dated May 22, 2007, Appellant filed a timely appeal from the final decision.
Decision
Appellant has asserted three monetary claims against Respondent for the cost of repairs to the leased premises necessitated by alleged actions and inactions of Respondent. To establish entitlement for each of his claims, Appellant must prove by a preponderance of the evidence, that the claimed damages to the leased premises actually occurred and that those damages resulted from actions or inactions of the Postal Service or its agents. Mary Lou Bloom & Kenneth D. Bloom, PSBCA No. 4053, 98-1 BCA ¶29,352; T.W. Cole, PSBCA No. 3076, 92-3 BCA ¶25,091.
Repairs to Roof Overhang and Stucco at Rear of Building
Appellant claims entitlement to reimbursement for the cost of repairs to the overhang and stucco at the rear of the leased premises that he claims was damaged by a collision with a large truck or trailer operated by Respondent or its agents. The record contains several photographs of a roof overhang partially in disrepair and an adjacent small area of damaged stucco at the rear of the post office. The record also contains photographic submissions by Appellant showing a large truck bearing the logo “US Mail” near the roof overhang in question. However, the nature and cause of the damage to the overhang and stucco is not apparent from reviewing the photographs submitted by Appellant and those contained in the Appeal File or from any other part of the record. [4] Appellant has not met its burden of showing that the damage to the overhang and stucco was caused by a collision with a truck; regardless of the party that may have operated it. Accordingly, Appellant’s claim for the cost of repairing the overhang and stucco is denied.
Claim for the Cost of Excess Water Usage
Appellant claims entitlement to the cost of excess water usage resulting from the Postal Service’s alleged negligent failure to notify him that a toilet in the leased premises was continuously running water for an unspecified period of time. First, Appellant has failed to prove that there was an increase in water usage during the lease period (Finding 8). Second, even if Appellant had been able to demonstrate the leaking toilet caused an increase in water usage during the lease period, Appellant has failed to demonstrate that Respondent was negligent by not notifying Appellant. Appellant has not shown that any postal employee or representative knew, or should have known, of the running toilet. Additionally, Appellant’s employee was regularly present to clean the post office, and there is some evidence that it was she who first noticed the leaking toilet and that she reported it to Appellant. Without proof that Respondent had knowledge, or should have had knowledge, of the condition, Respondent cannot be found negligent in not reporting it. Trust of Anthony J. Penachio, Sr., PSBCA No. 4965, 04-1 BCA ¶32,599 at 161,314. Appellant’s claim for excess water usage is denied.
Accordingly, the appeal is denied in its entirety.
William A. Campbell
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
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[1] In her declaration the Postmaster stated that the water usage for the leased premises was not measured separately from the rest of the building. Appellant states in Exhibit E of his April 10, 2008 filing with the Board that the building has 3 water meters; one of which measures water usage to the restrooms in the leased premises and a restroom in a vacant area of the building. We accept Appellant’s assertion.
[2] In his October 7, 2007 Complaint Appellant claims that the sound from the running water in the women’s toilet was audible from outside of the restroom. However, in attachment B to his subsequent letter dated April 10, 2008, which was filed with the Board, Appellant states that it was when he actually entered the women’s restroom that he heard the running toilet. Given the conflict in Appellant’s two statements which, we note, consisted of unsworn hearsay, we cannot ascertain the noise level of the running toilet. Moreover, in view of the confusion by Appellant’s handyman and cleaning person (Finding 7), there is insufficient evidence to challenge the sworn statements of the Postmaster that she was unaware of the running toilet or to conclude that the fact that she did not notice it was unreasonable,
[3] The two water bills, which are the only evidence Appellant submitted in support of his claim for excess water usage, covered the periods from February 28, 2005 to May 31, 2005, and May 31, 2005 to August 31, 2005. Both periods preceed the current lease term. The record contains no support for Appellant’s claim for excessive water usage during the current lease term. Moreover, the water bills submitted by Appellant actually show a decrease in water usage for the periods covered as opposed to an increase. The first bill contained a charge to Appellant of $172.60 while the second bill contained a charge to Appellant of $86.64 (AF 2, p. 20).
[4] Nor has Appellant established Respondent’s exclusive management and control of the area in which the damage occurred, which would be necessary to support a finding of liability based upon the doctrine of res ipsa loquitur. See David R. Hess, PSBCA No. 1418, 86-2 BCA ¶18,802.
June 25, 2009
Appeal of
RICHARD WERNER
LEASE AGREEMENT
PSBCA No. 5414
APPEARANCE FOR APPELLANT:
Richard Werner
APPEARANCE FOR RESPONDENT:
Barbara H. Cioffi, Esq.
Law Department
United States Postal Service
OPINION OF THE BOARD
Appellant, Richard Werner, has appealed from the denial of three monetary claims asserted under his lease with Respondent, United States Postal Service. At the election of the parties, the appeal is being considered on the record, which consists of the pleadings, the appeal file, stipulations by the parties, Appellant’s filing with the Board dated April 10, 2008, (containing Exhibits A–E), two photos submitted by Appellant, and a declaration by the Postmaster. Respondent submitted a post hearing brief. Although afforded an opportunity to do so, Appellant did not file a post hearing brief. Both entitlement and quantum are at issue.
Findings of Fact
1. On September 23, 2005, Appellant and Respondent entered into a five year lease for a term beginning March 1, 2006, and ending February 28, 2011, for space to be used as the Newport, Minnesota Post Office (Appeal File, Tab (AF) 4; Stipulation (Stip.) 19). Respondent had leased the premises from Appellant under a separate lease for the 5 years preceding the current lease (AF 4; Stip. 9-0).
2. Pursuant to the Lease, Appellant was responsible for the building maintenance (AF 4, p. 24, ¶5, Other Provisions). Appellant provided a cleaning person, who cleaned the post office as well as other parts of the building three times per week (Declaration of M. Pardee (Pardee Decl.), ¶20).
3. The Lease also included a Maintenance Rider that provided in relevant part that
[Appellant] shall, except…for damage resulting from the act or negligence of Postal Service agents or employees, maintain the demised premises, including the building and any and all equipment, fixtures, systems, and appurtenances, whether severable or non-severable, furnished by [Appellant] under this Lease, in good repair and tenantable condition during the continuation of the lease. [Appellant’s] duties include repair and replacement as necessary.
* * *
For the purpose of so maintaining said premises and property, [Appellant] may at reasonable times, and upon reasonable notice to the facility manager, enter and inspect the same and make any necessary repairs thereto.
(AF 4, p. 31; Stip. 22, 23).
4. The Maintenance Rider also provided that whenever Respondent determined there was a need for maintenance or repair that was Appellant’s responsibility under the lease, Appellant was required to perform the maintenance or repair. Respondent was to give written notice of the required work and specify a time for its completion. (AF 4, p. 32, ¶10; Stip. 24).
5. Appellant was responsible for providing a water system and for paying the recurring water charges for the leased premises (AF 4, p. 35). Respondent does not pay for water service as a charge separate from its monthly rent (Pardee Decl., ¶5).
6. Two employee restrooms are located within the leased premises (Pardee Decl., ¶18). At some time prior to January 29, 2007, Appellant received a water bill for the portion of the building that included the restrooms in the leased premises that was higher than he thought it should be.[1] As a result he investigated the situation and discovered that a toilet in the women’s restroom of the leased premises was running and needed repair (Complaint, p. 3).
7. Prior to the toilet being repaired Appellant’s handyman visited the post office to look at the leaking toilet and, afterwards, instructed the Postmaster to put an “Out of Order” sign on the men’s bathroom door. Appellant’s cleaning person subsequently informed the Postmaster that the leaking toilet was actually in the women’s bathroom. Prior to her conversations with Appellant’s handyman and cleaning person, the Postmaster had no knowledge of the running toilet nor had she been advised by any other postal employee that a toilet was running. (Appellant’s April 10, 2008 filing with the Board, Exhibits B, E; Pardee Decl., ¶21).[2]
8. By letter dated January 29, 2007, Appellant submitted an invoice to the Postmaster for $2,873.70 in damages. Specifically, Appellant sought $1,120 to repair stucco on the rear of the building, $783 to repair the roof overhang and $970.70[3] for excessive water usage. (AF 7; Stip. 26). The record contains several photographs which show a roof overhang that appears to be in some disrepair along its right front section (AF 6). The only damaged stucco shown in the record is a small section immediately adjacent to the overhang.
9. Appellant claimed that the building damages were caused by postal trucks backing into the building and the excessive water usage was due to Respondent not reporting a leaking toilet in the women’s bathroom in the leased premises (AF 7; Stip. 27).
10. The Newport Post Office is served by its own local delivery vehicles and by larger vehicles operated by an independent contractor (Pardee Decl., ¶¶12, 15, 17; Complaint, p. 2). The local delivery vehicles are not tall enough to have caused the damage to the rear overhang as alleged by Appellant (AF 6, p. 41; Pardee Decl., ¶13). The independent contractor’s large vehicles are tall enough to have come in contact with the rear overhang. However, since the Newport Post Office does not have a loading dock, the practice of the larger delivery trucks was to pull up parallel to the building thereby avoiding the rear overhang and stucco. Postal employees would then transfer the mail into the building using hampers as opposed to having the trucks back up to the building when loading and unloading. (Pardee Decl., ¶¶14, 15). The record contains no evidence that establishes that any vehicle owned or operated by Respondent or its agents caused the damage alleged by Appellant.
11. By letter dated March 27, 2007, Appellant submitted a second invoice to the Postmaster for the same damages (AF 8; Stip. 28).
12. By letter dated April 10, 2007, Appellant submitted the same damages as a claim to the contracting officer (AF 9; Stip. 29).
13. By final decision dated April 18, 2007, the contracting officer denied the claim (AF 10; Stip. 30). The contracting officer found that the building damage could not have been caused by the postal trucks because they do not reach the roof and “rarely back near the building”. Furthermore, with respect to the excessive water usage claim, he concluded that the Postmaster was not aware of the water leak. (AF 10).
14. By letter dated May 22, 2007, Appellant filed a timely appeal from the final decision.
Decision
Appellant has asserted three monetary claims against Respondent for the cost of repairs to the leased premises necessitated by alleged actions and inactions of Respondent. To establish entitlement for each of his claims, Appellant must prove by a preponderance of the evidence, that the claimed damages to the leased premises actually occurred and that those damages resulted from actions or inactions of the Postal Service or its agents. Mary Lou Bloom & Kenneth D. Bloom, PSBCA No. 4053, 98-1 BCA ¶29,352; T.W. Cole, PSBCA No. 3076, 92-3 BCA ¶25,091.
Repairs to Roof Overhang and Stucco at Rear of Building
Appellant claims entitlement to reimbursement for the cost of repairs to the overhang and stucco at the rear of the leased premises that he claims was damaged by a collision with a large truck or trailer operated by Respondent or its agents. The record contains several photographs of a roof overhang partially in disrepair and an adjacent small area of damaged stucco at the rear of the post office. The record also contains photographic submissions by Appellant showing a large truck bearing the logo “US Mail” near the roof overhang in question. However, the nature and cause of the damage to the overhang and stucco is not apparent from reviewing the photographs submitted by Appellant and those contained in the Appeal File or from any other part of the record. [4] Appellant has not met its burden of showing that the damage to the overhang and stucco was caused by a collision with a truck; regardless of the party that may have operated it. Accordingly, Appellant’s claim for the cost of repairing the overhang and stucco is denied.
Claim for the Cost of Excess Water Usage
Appellant claims entitlement to the cost of excess water usage resulting from the Postal Service’s alleged negligent failure to notify him that a toilet in the leased premises was continuously running water for an unspecified period of time. First, Appellant has failed to prove that there was an increase in water usage during the lease period (Finding 8). Second, even if Appellant had been able to demonstrate the leaking toilet caused an increase in water usage during the lease period, Appellant has failed to demonstrate that Respondent was negligent by not notifying Appellant. Appellant has not shown that any postal employee or representative knew, or should have known, of the running toilet. Additionally, Appellant’s employee was regularly present to clean the post office, and there is some evidence that it was she who first noticed the leaking toilet and that she reported it to Appellant. Without proof that Respondent had knowledge, or should have had knowledge, of the condition, Respondent cannot be found negligent in not reporting it. Trust of Anthony J. Penachio, Sr., PSBCA No. 4965, 04-1 BCA ¶32,599 at 161,314. Appellant’s claim for excess water usage is denied.
Accordingly, the appeal is denied in its entirety.
William A. Campbell
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] In her declaration the Postmaster stated that the water usage for the leased premises was not measured separately from the rest of the building. Appellant states in Exhibit E of his April 10, 2008 filing with the Board that the building has 3 water meters; one of which measures water usage to the restrooms in the leased premises and a restroom in a vacant area of the building. We accept Appellant’s assertion.
[2] In his October 7, 2007 Complaint Appellant claims that the sound from the running water in the women’s toilet was audible from outside of the restroom. However, in attachment B to his subsequent letter dated April 10, 2008, which was filed with the Board, Appellant states that it was when he actually entered the women’s restroom that he heard the running toilet. Given the conflict in Appellant’s two statements which, we note, consisted of unsworn hearsay, we cannot ascertain the noise level of the running toilet. Moreover, in view of the confusion by Appellant’s handyman and cleaning person (Finding 7), there is insufficient evidence to challenge the sworn statements of the Postmaster that she was unaware of the running toilet or to conclude that the fact that she did not notice it was unreasonable,
[3] The two water bills, which are the only evidence Appellant submitted in support of his claim for excess water usage, covered the periods from February 28, 2005 to May 31, 2005, and May 31, 2005 to August 31, 2005. Both periods preceed the current lease term. The record contains no support for Appellant’s claim for excessive water usage during the current lease term. Moreover, the water bills submitted by Appellant actually show a decrease in water usage for the periods covered as opposed to an increase. The first bill contained a charge to Appellant of $172.60 while the second bill contained a charge to Appellant of $86.64 (AF 2, p. 20).
[4] Nor has Appellant established Respondent’s exclusive management and control of the area in which the damage occurred, which would be necessary to support a finding of liability based upon the doctrine of res ipsa loquitur. See David R. Hess, PSBCA No. 1418, 86-2 BCA ¶18,802.