B-154114, MAY 20, 1964

B-154114: May 20, 1964

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MOZINO: REFERENCE IS MADE TO YOUR LETTER OF APRIL 22. UNDER THE SAME PARAGRAPH THE GOVERNMENT HAD THE RIGHT TO MAKE A CASH SETTLEMENT IN LIEU OF ITS RESTORATION OBLIGATION AND IT WAS PROVIDED THAT IF A MUTUALLY ACCEPTABLE SETTLEMENT SHOULD BE MADE THEREUNDER A SUPPLEMENTAL AGREEMENT EFFECTUATING SUCH SETTLEMENT WOULD BE ENTERED INTO. WERE ISSUED TO THE LESSOR UNDER BOTH LEASES. THE CORPS ADVISED YOU THAT NO DATA HAD BEEN FURNISHED WHICH WOULD JUSTIFY ANY REVISION IN THE GOVERNMENT'S ESTIMATE AND YOU WERE AFFORDED AN OPPORTUNITY TO DISCUSS THE MATTER. THE CORPS HAS REPORTED THAT SOME OF THE ITEMS OF YOUR CLAIMS EXCEED THE GOING RATE OR ARE NOT PROPERLY CHARGEABLE TO THE GOVERNMENT. THAT THE GOVERNMENT'S ESTIMATE WAS FAIR.

B-154114, MAY 20, 1964

TO MR. JOSEPH S. MOZINO:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1964, REQUESTING REVIEW OF SETTLEMENT OF MARCH 25, 1964, DISALLOWING $1,040 OF YOUR CLAIM FOR $1,712 AS DAMAGES ARISING FROM THE ARMY'S OCCUPANCY OF DWELLINGS AT 520 MORTON AVENUE AND 26 FAIRHILL ROAD, MORTON, PENNSYLVANIA, UNDER LEASES NOS. DA-49 -080-ENG-2758 AND DA-36-109-ENG 6493, DATED FEBRUARY 7, 1956, AND JANUARY 9, 1957, RESPECTIVELY.

THE FIRST NUMBERED LEASE PROVIDED FOR A TERM BEGINNING MARCH 1, 1956,THROUGH JUNE 30, 1956, WITH AUTOMATIC RENEWAL OPTION NOT TO EXTEND BEYOND JUNE 30, 1966, AT AN ANNUAL RENTAL OF $1,800. THE SECOND NUMBERED LEASE PROVIDED FOR A TERM BEGINNING JANUARY 16, 1957, AND ENDING JUNE 30, 1957, WITH AN AUTOMATIC RENEWAL CLAUSE NOT TO EXTEND BEYOND JUNE 30, 1966, AT AN ANNUAL RENTAL OF $1,800. UNDER PARAGRAPH 7 OF BOTH LEASES, THE GOVERNMENT AGREED TO SURRENDER POSSESSION OF THE PREMISES UPON EXPIRATION OR TERMINATION OF THE LEASE AND UPON RECEIPT OF TIMELY WRITTEN NOTICE TO RETURN THE PREMISES IN AS GOOD CONDITION AS THAT EXISTING AT THE TIME OF ENTRY, REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGES BY THE ELEMENTS EXCEPTED. UNDER THE SAME PARAGRAPH THE GOVERNMENT HAD THE RIGHT TO MAKE A CASH SETTLEMENT IN LIEU OF ITS RESTORATION OBLIGATION AND IT WAS PROVIDED THAT IF A MUTUALLY ACCEPTABLE SETTLEMENT SHOULD BE MADE THEREUNDER A SUPPLEMENTAL AGREEMENT EFFECTUATING SUCH SETTLEMENT WOULD BE ENTERED INTO. ON MARCH 13, 1962, TERMINATION NOTICES, EFFECTIVE JUNE 30, 1962, WERE ISSUED TO THE LESSOR UNDER BOTH LEASES. IN YOUR LETTER OF MARCH 20, 1962, ACKNOWLEDGING RECEIPT OF SUCH NOTICES YOU ADVISED THAT THE CANCELLATION NOTICES WOULD NOT BE SIGNED AND RETURNED UNTIL SETTLEMENT OF THE RESTORATION QUESTION. BY LETTERS DATED JUNE 27, 1962, YOU FILED ITEMIZED CLAIMS FOR $932 AND $660 UNDER LEASES NOS. DA 49-080-ENG-2758 AND DA-36-109-ENG-6493, RESPECTIVELY, AND ON JULY 5, 1962, YOU ACKNOWLEDGED RECEIPT OF THE KEYS FOR BOTH DWELLINGS.

ON AUGUST 1, 1962, FOLLOWING A SURVEY OF THE FAIRHILL ROAD PROPERTY (DA- 6493) THE CORPS OF ENGINEERS FORWARDED TO YOU A COPY OF YOUR ITEMIZED LIST OF DAMAGES WITH COMMENTS THEREON INDICATING THE COMPENSABLE DAMAGES AT ONLY $378 AS OPPOSED TO THE CLAIMED AMOUNT OF $660 TOGETHER WITH A PROPOSED SUPPLEMENTAL AGREEMENT IN THE AMOUNT OF THE ADMINISTRATIVE ESTIMATE. BY LETTER DATED AUGUST 8, 1962, YOU REJECTED THE ADMINISTRATIVE OFFER OF SETTLEMENT AND AT THE SAME TIME YOU FILED CLAIM FOR AN ADDITIONAL AMOUNT OF $175 FOR SCRAPING PAINT FROM THE WALL PAPER. IN THE MEANTIME, BY LETTER DATED AUGUST 2, 1962, THE CORPS OF ENGINEERS FOLLOWING A SURVEY OF MORTON AVENUE PROPERTY (DA-2758) FORWARDED TO YOU A COPY OF YOUR ITEMIZED LIST OF DAMAGES WITH COMMENTS THEREON INDICATING THE COMPENSABLE DAMAGES AS ONLY $249 AS OPPOSED TO THE CLAIMED AMOUNT OF $932 TOGETHER WITH A PROPOSED SUPPLEMENTAL AGREEMENT IN THE AMOUNT OF THE ADMINISTRATIVE ESTIMATE. BY LETTER DATED AUGUST 13, 1962, THE CORPS ADVISED YOU THAT NO DATA HAD BEEN FURNISHED WHICH WOULD JUSTIFY ANY REVISION IN THE GOVERNMENT'S ESTIMATE AND YOU WERE AFFORDED AN OPPORTUNITY TO DISCUSS THE MATTER. BY LETTER DATED AUGUST 24, 1962, YOU REJECTED THE PROPOSED SETTLEMENT UNDER LEASE NO. DA-2758 AND CLAIMED AN ADDITIONAL AMOUNT OF $45 FOR DAMAGE TO THE GARAGE DOOR AND JUSTIFIED THE LATE FILING ON THE GROUND THAT THE GARAGE COULD NOT BE INSPECTED "UNTIL RECENTLY" BECAUSE YOU HAD NO KEY. THE CORPS REVISED THE GOVERNMENT'S ESTIMATE TO INCLUDE THE ADDITIONAL ITEM OF $45 AND ADJUSTED THE PROPOSED SUPPLEMENTAL AGREEMENT ACCORDINGLY.

THE CORPS HAS REPORTED THAT SOME OF THE ITEMS OF YOUR CLAIMS EXCEED THE GOING RATE OR ARE NOT PROPERLY CHARGEABLE TO THE GOVERNMENT; THAT THE GOVERNMENT'S ESTIMATE WAS FAIR, JUST AND PROPER; AND THAT YOU HAVE REFUSED TO DISCUSS THE MATTERS WITH CORPS REPRESENTATIVES FOR THE PURPOSE OF RESOLVING THE PROBLEM. AS TO YOUR COMPLAINT THAT DELAY IN DELIVERY OF THE KEYS UNTIL JULY 5, 1962, DEPRIVED YOU OF THE RIGHT TO ENTER THE DWELLINGS BEFORE THAT DATE, THE CORPS HAS POINTED OUT THAT YOUR ESTIMATES ARE BOTH DATED JUNE 27, 1962.

IN ADDITION, THE CORPS HAS STATED THAT YOUR ESTIMATE IGNORES CERTAIN MATTERS RELATING TO THE USE OF THE PREMISES AND AS TO WHAT CONSTITUTES NORMAL WEAR AND TEAR. IN A CONDITION SURVEY REPORT WITH RESPECT TO LEASE NO. DA-2758, MADE ON JULY 5, 1962, BY A CORPS REPRESENTATIVE ACCOMPANIED BY YOUR MANAGER IT IS STATED, IN EFFECT, THAT WHILE THE WOODWORK AND FLOORS DID SHOW SIGNS OF WEAR THE CONDITION OF SAME DID NOT EXCEED NORMAL WEAR AND TEAR CONSIDERING THE APPROXIMATELY SIX AND ONE-HALF YEARS OF GOVERNMENT OCCUPANCY, EXCEPT FOR THE SHOE MOLDING IN THE CENTER OF THE WALL IN THE UPSTAIRS SOUTH BEDROOM. AS TO THE SIDEWALLS AND CEILINGS THE CORPS REPRESENTATIVE FOUND THAT THE PLASTERED WALLS THROUGHOUT THE HOUSE WERE GENERALLY IN GOOD CONDITION WITH NO EVIDENCE OF ABUSE. THE REPORT STATED, HOWEVER, THAT THERE WERE SOME SMALL NAIL HOLES WHERE CURTAINS, PICTURES OR MIRRORS, WERE HUNG, AND SOME EVIDENCE INDICATING THAT FURNITURE HAD BEEN PUSHED ALONG THE WALLS WHICH RESULTED IN SKINNING THE PAPER. THE CORPS REPRESENTATIVE POINTED OUT, HOWEVER, THAT THIS HOUSE HAD NEVER BEEN PAPERED OR PAINTED DURING THE ENTIRE PERIOD OF THE GOVERNMENT'S OCCUPANCY.

FROM THE FOREGOING IT APPEARS THAT THE DIFFERENCES BETWEEN YOU AND THE CORPS AS TO THE COMPENSABLE DAMAGES RESULTING FROM CAUSES BEYOND REASONABLE AND ORDINARY WEAR AND TEAR ARE IRRECONCILABLE. YOU CONTEND THAT THE AMOUNT DISALLOWED REPRESENTS DAMAGES IN EXCESS OF NORMAL WEAR AND TEAR WHEREAS THE DEPARTMENT OF THE ARMY FOLLOWING ITS INVESTIGATION AND SURVEY HAS CONCLUDED THAT SUCH AMOUNT REPRESENTS ITEMS RESULTING FROM NORMAL WEAR AND TEAR FOR THE PERIODS OF OCCUPANCY AND THEREFORE NOT PROPERLY FOR ALLOWANCE. IN SUCH SITUATIONS IT IS THE LONG ESTABLISHED RULE OF OUR OFFICE, WHEN THERE IS COMPLETE DISAGREEMENT, AS HERE,BETWEEN THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS AND THOSE STATED BY THE CLAIMANT, TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. SEE 16 COMP. GEN. 325; 18 ID. 799; 800; 31 ID. 288; AND 37 ID. 568, 570.