Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
   _________________________________________________________________
   _
 
                 RESPONDENT'S MOTION FOR SUMMARY RELIEF
                     GRANTED IN PART: June 5, 2001
   _________________________________________________________________
   __
 
 
                              GSBCA 15208
 
 
                       A&B LIMITED PARTNERSHIP, 
 
                                                Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                                Respondent.
 
        Allen E. Ertel of Allen E. Ertel & Associates, Williamsport,
   PA, counsel for Appellant.
 
        Ruth  Kowarski, Office of  General Counsel, General Services
   Administration, Washington, DC, counsel for Respondent.
 
   Before Board Judges DANIELS (Chairman), BORWICK, and GOODMAN.
 
   GOODMAN, Board Judge.
 
        The dispute  in this appeal  arises from a lease  for office
   space  entered   into  by  appellant,  A&B   Limited  Partnership
   (appellant or A&B),  as lessor, and respondent,  General Services
   Administration (respondent or GSA), as lessee.  The appeal before
   the Board arises  from a deemed  denial of appellant's  certified
   claim  pursuant to the Contract Disputes Act seeking compensation
   for damage to property and for costs of purchasing and installing
   property allegedly  wrongfully  removed from  the  property  when
   respondent terminated the lease in  1999.  Respondent has filed a
   motion for summary relief  seeking to dismiss the appeal.  As set
   forth below, we deny respondent's motion  as to appellant's claim
   for damage to property, as  material facts remain in dispute, and
   grant  respondent's motion as  to appellant's claim  for costs of
   purchase  and installation of property,  as there are no material
   facts in  dispute and  appellant is not  entitled to  recovery of
   this portion of  its claim as a  matter of law.   Accordingly, we
   deny this portion of appellant's claim seeking costs for purchase
   and  installation of  property  which  was  allegedly  wrongfully
   removed by respondent.
 
 
                      Findings of Undisputed Fact
 
        1.  Pursuant  to Lease No. GS-03-B-6457 dated  July 2, 1974,
   GSA leased 66,000  square feet of office  space in a  building in
   Wilkes-Barre, Pennsylvania, known as Penn  Place.   The lease was
   for  a  period of  ten  years  commencing on  the  date  of GSA's
   occupancy  and allowed  for two  renewal option  periods of  five
   years each.   The  lessor was Wideman  Associates.   Appeal File,
   Exhibit 15 at 1.
 
        2.  The lease as originally executed reads in relevant part:
 
        2. Maintenance of Premises.
 
        The  Lessor   shall  maintain  the   demised  premises,
        including  the  building  and any  and  all  equipment,
        fixtures, and  appurtenances, furnished  by the  Lessor
        under  this  lease   in  good  repair  and   tenantable
        condition,  except in case  of damage arising  from the
        act or  the negligence  of the  Government's agents  or
        employees.   For  the purpose  of  so maintaining  said
        premises  and property,  the  Lessor may  at reasonable
        times,  and   with  the  approval  of   the  authorized
        Government representative in charge, enter and  inspect
        the same and make any necessary repairs thereto. 
 
        . . . . 
 
        4. Alterations.
 
        The  Government  shall   have  the  right   during  the
        existence  of  this lease  to make  alterations, attach
        fixtures and erect additions,  structures, or signs  in
        or upon  the  premises hereby  leased, which  fixtures,
        additions  or structures so placed in, upon or attached
        to  the said premises shall be  and remain the property
        of  the  Government  and may  be  removed  or otherwise
        disposed of by the Government.
 
   Appeal File, Exhibit 1 at 3.  
 
        3.  GSA  commenced occupancy on September 15,  1975.  Appeal
   File,  Exhibit 2 at 4. 
 
        4.   On or  about May 29, 1984,  the Government recognized a
   transfer  of this  lease contract  to  a successor  landlord, W/B
   Associates.  Appeal File, Exhibit 2 at 11. 
 
        5.   On  July 10,  1987, the  respondent and  W/B Associates
   entered into Supplemental  Lease Agreement (SLA)  No. 14 for  the
   renovation  and electrical  upgrade  of room  2227,  the   Social
   Security Administration claims  area located on the  second floor
   of the leased building.  Appeal File, Exhibit 2 at 15-38.
 
 
        6.  SLA No.14 states in part: 
 
        Whereas, the parties  hereto desire to amend  the above
        Lease. . . . 
 
        NOW THEREFORE, these parties  . . . covenant and  agree
        that  the   said  Lease  is  amended,   effective  upon
        execution of  this Supplemental Lease  Agreement by the
        Government as follows: . . . .
 
        All other terms and conditions  of the lease shall remain in
   force and effect.
 
   Appeal File, Exhibit 2 at 15. 
 
        7.  Paragraph 5 of SLA No. 14 states:
 
        It is understood and agreed that the Government retains
        title  to   all  removable  property  covered  by  this
        agreement.    At  the termination  of  this  lease, the
        Government  shall  at  its   own  expense  restore  the
        premises to their  approximate original condition, fair
        wear and tear excepted; or the Government shall pay the
        Lessor  the  lesser  cost of  such  restoration  or the
        diminution in the  market value of the  leased premises
        resulting from  the Government's failure to restore the
        premises. 
 
   Appeal File, Exhibit 2 at 16. 
 
        8.   On or  about October  of 1991, the  respondent and  W/B
   Associates  negotiated SLA No.  15, providing for  alterations of
   the Department of Health  and Human Services' Office of  Hearings
   and Appeals (OHA), which was  located on the third floor of  Penn
   Place.  Pursuant  to this agreement, the lessor  was charged with
   the  responsibility for cleaning  and maintaining the  carpet per
   the lease specifications.  Appeal File, Exhibit 2 at 41 (  7).
 
        9.  During the course  of performing the work required under
   SLA No.  15, W/B  Associates sought  compensation for  additional
   items  of work required under SLA No. 15.   SLA No. 19, dated May
   4,   1993,  provided  additional  funds  to  W/B  Associates  for
   provision of,  among other things,  additional carpet  selections
   and upgrading of  chair rails in the OHA. Appeal  File, Exhibit 2
   at 71.
 
        10.   According  to respondent,  in September  of  1997, GSA
   vacated  the  entire  space  occupied by  GSA  tenants  with  the
   exception of approximately 2000 square  feet of space located  on
   the second floor of the building.   The 2000 square feet of space
   remaining was  used to house  the Federal Probation Office.   The
   remaining second floor space stayed  vacant and unoccupied by GSA
   until the expiration of GSA's lease with appellant.  Respondent's
   Motion for Summary Relief, Attachments F, G.
 
 
        11. On or  about February 12, 1998, GSA,  acting through its
   contractor, Keating Development Company, commenced renovation  of
   the third floor  of Penn Place to provide temporary space for the
   United  States Bankruptcy  Courts,  Court  of  Appeals,  District
   Court, and  Marshals Service.   According to the  respondent, the
   contract   required  construction   of   three  chamber   suites,
   courtrooms,  attorney  conference  rooms,  jury  suites,  records
   storage  rooms, a  library, and a  vault.  Also  required was the
   relocation  of approximately forty-two wooden bookshelf units and
   counter space, under-counter shelving,  Magistrate and Bankruptcy
   Court benches, and a desk and jury box located at the former work
   spaces of these  tenants, the Max Rosenn U.S.  Courthouse, 197 S.
   Main Street, Wilkes-Barre, Pennsylvania.  Respondent's Motion for
   Summary Relief,  Attachments D, L.   The renovation  project also
   involved  the  installation  of  two  Government-owned  temporary
   holding cells  for use by  the U.S. Marshals Service  in carrying
   out  its law  enforcement  function.   These  holding cells  were
   relocated from the  U.S. Courthouse in Albany, New  York, to Penn
   Place.  Respondent's Motion for Summary Relief, Attachments E, G,
   L.
 
        12.  A representative of the appellant examined the property
   before the  appellant purchased the  property on March  13, 1998,
   for the sum of $1,600,000.   Appellant has submitted an affidavit
   from its representative which states in relevant part:
 
        I  examined Penn  Place  just  days before  the  . .  .
        [s]ale, including  the plans for  remodeling the  third
        floor.  I understand what reasonable wear and tear on a
        building means.  
 
   Affidavit of William Brown (Brown Affidavit) (Mar. 14, 2001)   2.
 
        13.   On  April 23,  1998, GSA  and its  contractor, Keating
   Development  Company,  conducted  a  walk-through  of  the  newly
   renovated  third floor court spaces and signed a condition survey
   report.   Move-in to the third floor commenced on April 25, 1998.
   Respondent's Motion for Summary Relief, Attachments J, K.
 
        14.  On June 3,1998,   respondent and appellant entered into
   SLA  No. 23,  modifying the  lease  to make  GSA responsible  for
   routine maintenance  and incidental  repairs for  those areas  of
   interior space occupied by the Government.   The term "incidental
   repairs"  was defined as "unscheduled work  items defined as $250
   or  less for  materials and  parts  only."   The Government  also
   assumed  responsibility at this time  for routine cleaning of and
   janitorial services  for the  space occupied  by the  Government.
   Appeal File, Exhibit 2 at 78.
 
        15.   On  November 17,  1998, GSA  advised appellant  of its
   intention  to terminate the lease on May  17, 1999.  Appeal File,
   Exhibit 2 at 79.  
 
        16.   On May 10, 1999, GSA  sought and obtained an extension
   of  its lease  to allow  for a July  16, 1999,  lease termination
   date.  Respondent's Motion for Summary Relief, Attachment C.
 
        17.   On  July  21,  1999, after  GSA's  departure from  the
   premises,  appellant advised  GSA's Contracting  Officer that  it
   believed the building had been "plundered."   The letter attached
   a  list of difficulties and problems  pertaining primarily to the
   second floor of the building  allegedly in need of correction and
   stated that pictures and a  video depicting the problems had been
   taken  previously  and  that  none   of  the  problems  had  been
   corrected.  Appeal File, Exhibit 3.  
 
        18.   Appellant's representative who  examined the  building
   prior to purchase states in his affidavit:
 
        When the Government vacated the building, subsequent to
        their  lease,  the   building  was  basically  trashed,
        structural items  removed,  and it  was damaged  beyond
        ordinary  wear and  tear. .  . .  [Appellant] sold  the
        building  at a discounted price because of its terrible
        condition,   which   condition  was   created   by  the
        Government.  Although  we had prospects go  through the
        building, once they  saw it, we did not  hear from them
        again.
 
   Brown Affidavit     5, 6.
 
        19.  On  or about August 9, 1999,  a GSA contracting officer
   received  photographs that she believes were sent from appellant.
   The photographs allegedly depict  problematic building conditions
   at  Penn  Place.     Respondent's  Motion  for   Summary  Relief,
   Attachment F; Appeal File, Exhibit 6.
 
        20.   On August 13, 1999, GSA requested that it be permitted
   to conduct  a final walk-through  inspection of Penn Place.   The
   walk-through took place on August 18, 1999.  Appeal File, Exhibit
   7; Respondent's Motion for Summary Relief, Attachment G.
 
        21.  On  August 20, 1999, appellant submitted  a proposal to
   GSA in  the amount of $239,000  for the renovation  of the second
   and third floors of Penn Place.  Appeal File, Exhibit 8.
 
        22.  On September 27,  1999, GSA wrote to appellant offering
   to provide a payment of $16,032 as compensation for the repair of
   items enumerated  in appellant's list  of July 21, 1999.   Appeal
   File, Exhibit 10.
 
        23.   On  November 2,  1999, having  received no  reply from
   appellant, GSA  advised that  it would pay  appellant the  sum of
   $16,032 and close out this matter.  Appeal File, Exhibit 11.
 
        24.     GSA  authorized  the   payment  on  the  same  date.
   Respondent  alleges that its  records indicate that  such payment
   was  received  by  appellant.   Respondent's  Motion  for Summary
   Relief, Attachment H.
 
        25.   Appellant subsequently  sold the property  on November
   24, 1999,  to Mericle, d/b/a  Mericle for the sum  of $1,800,000.
   Respondent's Motion for Summary Relief,  Attachment O.
 
        26.     On  December   20,  1999,  appellant   submitted  an
   uncertified  claim appealing  GSA's  November  2,  1999,  payment
   notification and seeking compensation in the amount of $400,000. 
 
        27.    On  June  19,  2000, appellant  submitted  to  GSA  a
   certified  claim   under  the   Contract  Disputes   Act  seeking
   compensation   in  the  amount  of  $340,413.30.    Specifically,
   appellant  demanded  payment  for  refurbishment  of  Penn  Place
   (estimated  at $239,000) and for purchase and installation of the
   following property (estimated at $101,413.30):
        (1)  two temporary holding cells;
        (2)  built-in bookshelves; 
        (3)  judges' bench material; and
        (4)  electric door  strikes, locks, and control buttons  for
   10 doors.
 
   Respondent's Motion for Summary Relief,  Attachment N.
 
        28.   The only  built-in bookshelves  ever installed in  the
   building  were  forty-two   Government-owned  wooden  bookshelves
   previously located at the Max Rosenn U.S.  Courthouse, which were
   removed  and  relocated  by  GSA  as  part  of  the  third  floor
   renovation  project.    Respondent's Motion  for  Summary Relief,
   Attachments D, G, I.
 
        29.   The only judges'  benches that were ever  installed at
   Penn Place were two benches  previously located at the Max Rosenn
   U.S.  Courthouse.     These  benches  were  relocated   by  GSA's
   contractor,  Keating  Development Corporation,  as part  of GSA's
   build-out  project providing temporary  court space on  the third
   floor of Penn Place.  One bench was removed and relocated back to
   the  refurbished  Max  Rosenn  U.S.  Courthouse  prior  to  GSA's
   termination of  the Penn  Place lease.   Respondent's  Motion for
   Summary Relief, Attachments D, F, G, I, L.
 
        30.   Appellant also seeks compensation for ten unidentified
   electric strikes, locks, transformers,  and door control  buttons
   that were  allegedly removed by  GSA.  As  was the case  with the
   other  items  of  property  discussed  above,  GSA paid  for  the
   acquisition  and installation  of  electric door  strikes, locks,
   transformers,  and control  buttons, as  part of the  third floor
   build-out  of temporary  court space.    Respondent's Motion  for
   Summary Relief, Attachments D,G.
 
 
        31.   The  appeal was  originally  docketed on  December 28,
   1999,  as GSBCA  15208.  Pursuant  to Board  Order dated  May 22,
   2000, the  appeal was  temporarily suspended  to allow  appellant
   time to make  an election on whether  it wished to  proceed under
   the  Contract Disputes  Act or  under the  terms of  the disputes
   clause set  forth in the  lease agreement.  Appellant  elected to
   proceed under the CDA and thereafter, on June 19, 2000, submitted
   a  certified  claim  to GSA's  contracting  officer,  Laurie Ney.
   Pursuant to a Board Order  dated August 29, 2000, the  matter was
   reinstated on a deemed denial basis.
 
                               Discussion
 
        It is well established that  resolving a dispute on a motion
   for  summary relief  is   appropriate where  no genuine  issue of
   material fact exists and the moving party is entitled to judgment
   as a matter  of law.  Anderson  v. Liberty Lobby, Inc.,  477 U.S.
   242, 247  (1986);  Celotex  Corp. v. Catrett,  477 U.S.  317, 322
   (1986); Giesler v.  United States, 232 F.3d 864,  869  (Fed. Cir.
   2000); Olympus Corp.  v. United States, 98 F.3d  1314, 1316 (Fed.
   Cir. 1996);  Copeland Enterprises,  Inc. v.  CNV, Inc.,  945 F.2d
   1563, 1565-66  (Fed.  Cir.  1991);  Mingus Constructors,  Inc. v.
   United States, 812 F.2d 1387,  1390 (Fed. Cir. 1987); Armco, Inc.
   v. Cyclops  Corp., 791  F.2d  147, 149  (Fed. Cir.  1986).   When
   reviewing  a  summary  judgment  motion,  courts  and  boards  of
   contract appeals draw all justifiable inferences  in favor of the
   nonmoving party.  Anderson, 472 U.S. at 255.
 
        Appellant's claim in this case  consists of a demand for the
   costs of  1) repairing damage  to the building and  2) purchasing
   and installing  specific property  said to  have been  wrongfully
   removed by  respondent.  The Government moves  for summary relief
   because it  believes there is  no dispute regarding  any material
   facts and it is  entitled to judgment  as a matter  of law.   The
   basis of  the Government's motion  is that it believes  that "GSA
   was  not contractually obligated to restore  the second and third
   floors of the  building upon termination of the lease [and GSA] .
   .  . was contractually  entitled to remove  built-in bookshelves,
   judges'  benches   and  temporary   detention  cells   previously
   furnished and  installed in  Penn Place by  GSA."   Memorandum in
   Support of Respondent's Motion for Summary Relief at 2.
 
   Appellant's Claim for Damages
 
        With  regard to  the  appellant's  claim  for  damages,  the
   Government  contends that  this claim  is   actually a  claim for
   restoration of the property which respondent is not contractually
   obligated to perform.    In support of  this position, respondent
   asserts  that the  lease when  first  executed, before  appellant
   became  the lessor,  contained  neither  a  "restoration"  nor  a
   "renovation"  clause.    Rather, the  respondent  notes  that the
   Maintenance  of  Premises  clause   made  the  lessor   generally
   responsible for the  maintenance of the property.   Specifically,
   the  lessor  was  responsible  for  maintenance  of  the  demised
   premises inclusive of all equipment, fixtures, and  appurtenances
   furnished by the  lessor.  The only exception  was damage arising
   from   acts    of   negligence    of    Government   agents    or
   employees.[foot #] 1      Memorandum      in      Support      of
   Respondent's Motion for Summary Relief at 5. 
    
 
        While  respondent does acknowledge that SLA No. 14, executed
   by the Government  and appellant's predecessor in  interest, does
   contain    restoration    language,[foot #] 2    the   Government
   interprets this language of the SLA to apply only to the  area of
   the building  to which  the SLA was  applicable.   The Government
   states in its motion for summary relief:
 
        In 1987, ten  years after the  lease was executed,  the
        GSA   and  the   then   current  lessor   negotiated  a
        supplemental   lease  agreement   (SLA)   14  for   the
        renovation  and  electrical   upgrade  of  the   Social
        Security Administration  claims  area  located  on  the
        second  floor of  the  leased  building.    During  the
        negotiation  of  SLA   14  the  parties  agreed   to  a
        restoration clause that  was placed on the  second page
        of the SLA at paragraph 5.  This restoration clause was
        neither referenced to nor incorporated in any of the  9
        subsequent SLAs negotiated by the parties.  
   Memorandum in Support  of Respondent's Motion for  Summary Relief
   at 6.
 
        In  support of its  position that the  restoration clause in
   SLA 14 was specific to that SLA only, the Government states:
 
        Acceptance  of  any  interpretation  that  SLA  No.  14
        resulted  in  the  addition  of a  general  restoration
        clause to the lease,  renders meaningless the  sentence
        in SLA 14  that "All other terms and  conditions of the
        lease shall remain in force and effect." . . .
 
        The general lease  that included the general  build out
        of  the  space  contained  no  restoration  clause  and
        therefore placed no obligation on  GSA to restore.  The
        lease also failed to place  any duty on GSA to renovate
        the  property.  Indeed the general lease authorized GSA
        to  make alterations to  the property, and  remove such
        alterations at the end of  the lease with no obligation
        to repair, renovate or  restore the premises subsequent
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     The full text  of this clause is set forth in
   Finding 2.
 
        [foot #] 2     The  full text of this provision is set forth
   in Finding 7.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        to removal  of the  improvement.   In other  words, the
        general  lease was  explicit in  its  exclusion of  any
        Government  obligation  to  restore  or  renovate   the
        premises.[[foot #] 3]
 
        A  restoration clause was  not inserted in  the general
        lease, but in  a specific SLA: SLA  14.  SLA  14 stated
        that  "all  other  terms and  conditions  of  the lease
        remained  in  full  force  and  effect." The  objective
        meaning of this  phrase, considering the words  of this
        sentence and the language of the  lease itself, is that
        the scope of the restoration applies only to  the items
        listed in SLA  14.  Any other interpretation  voids the
        meaning of the phrase in SLA 14 that all other terms of
        the lease shall remain in  effect.  It also ignores the
        meaning of the general lease's explicit omission of any
        Government  obligation  to  restore   or  renovate  the
        premises.
 
   Memorandum in Support  of Respondent's Motion for  Summary Relief
   at 6-8.
 
        The Government states further:
 
        Moreover, such an interpretation fails to give  meaning
        to  the first  sentence  of  paragraph  5 [of  SLA  14]
        stating  in  pertinent  part  that  "[T]he   Government
        retains title to all removable property covered by this
        agreement."  The only objective interpretation that can
        be  gleaned from reading  this sentence  in conjunction
        with the SLA  14 sentence stating that all  other terms
        and  conditions of the lease  remain in effect, is that
        the agreement covered  by SLA 14 is  the only agreement
        that was intended to be  covered by the language of SLA
        14.   SLA 14  was never intended  to amend  the overall
        lease contract to include a restoration clause.
 
        Interpreting SLA 14 as imposing a general obligation to
        restore  or renovate produces  an unjust result  and is
        unreasonable. 
 
   Memorandum in Support  of Respondent's Motion for  Summary Relief
   at 8-10.
 
        The Government analogizes  this situation to one  which this
   Board dealt with previously.  The Government states:
 
        Had the parties  intended to add a  general restoration
        clause  to the lease this would have been a significant
        amendment  since it  would have  imposed  a significant
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3     This is  a reference  to paragraph  4 of  the
   lease, set forth in Finding 2.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        contingent liability  on the Government as is suggested
        by the proposed $239,000.00 amount sought  by Appellant
        to restore  the premises.   SLA 14 cost  the Government
        $70,169.50.   Certainly  no  prudent person  would have
        agreed to assume such an extensive contingent liability
        without any consideration on the  part of the lessor in
        the form of a rental reduction or some other credit.
 
        The present appeal presents  a set of facts similar  to
        those  analyzed  by  the Board  in  Adelaide  Blomfield
        Management Company,  97-1 BCA 28,914;  GSBCA No. 13125.
        In  Adelaide Blomfield,  the Board  was  also asked  to
        interpret  and  give  effect  to  restoration  language
        included  within  the  scope  of  a  post  lease  award
        supplemental  lease  agreement.    In  performing  this
        analysis  the  Board  stated that  "[t]he  unexpressed,
        subjective  or  unilateral  intent   of  one  party  is
        insufficient to  bind the  other party."   Rather  than
        giving weight  to the parties' post  dispute subjective
        intent, the Board  gave weight to the  objective intent
        of the parties derived from  the base lease's lack of a
        restoration clause  and SLA  language stating that  all
        other terms  and conditions  of the  lease remained  in
        effect.   Based on  this analysis  the Board  concluded
        that the scope of the  restoration applied only to  the
        items  specified in  the SLA.   Applied to  the present
        case,  it is  clear,  by  looking  at  the  unambiguous
        language of SLA 14 and the lack of a restoration clause
        in the  base lease  that the  SLA restoration  language
        must also be  limited to the renovation  work performed
        under SLA 14.
 
        The SLA  14 work scope  was confined to  renovation and
        electrical  upgrade of  room 2227, the  Social Security
        Administration's claim area located on the second floor
        of the building.  GSA's only restoration obligation was
        limited  to restoring room 2227, rather than floors two
        and  three of the building.  Accordingly, Respondent is
        entitled   to  Summary   Disposition   and  denial   of
        Appellant's claim for restoration.
 
   Memorandum in Support  of Respondent's Motion for  Summary Relief
   at 8-10.        
 
        In response to respondent's arguments, appellant contends it
   has a contractual basis for  compensation for damages.  Appellant
   states  that  the  lease  does  in  fact  contain  a  contractual
   requirement  that obligates respondent to pay for restoration, as
   it interprets paragraph  2 of the  lease as an obligation  of the
   Government to  be responsible for  the acts or negligence  of its
   employees.    In  addition  to  the  contractual  provision,  the
   appellant states that  "a lease of real property  implies that it
   will be returned  in the same  condition in  which it was  given,
   ordinary      wear      and      tear      excepted."[[foot #] 4]
   Appellant's Memorandum in Opposition to Summary Judgment at 3.  
 
 
        Additionally,  appellant interprets  paragraph  5 of  SLA 14
   quoted  above to  be a  restoration clause  which applies  to the
   entire leased premises.  Appellant notes:
 
        the language  of the clause uses the  word "lease," not
        supplemental  lease agreement; thus  it applies  to the
        lease as a whole.  Secondly, there was no length of the
        term  of the lease in the supplemental lease agreement;
        therefore  there is no  termination unless you  look to
        the original lease  which this amendment was  to amend.
        Thirdly, the supplemental lease  agreement states: "The
        parties hereto  desire to  amend the  lease"; which  is
        clear they  intended clause  five to  amend the  lease.
        Fourthly,  the  supplemental  lease  agreement makes  a
        distinction between  the lease  and supplemental  lease
        agreement  inasmuch   as  in  the   supplemental  lease
        agreement itself it  uses the term  "supplemental lease
        agreement" as distinguished  from the word lease.   Not
        only are  these distinctions maintained  throughout the
        supplemental lease agreement, but also in the preceding
        paragraph  [of  SLA 14  which] .  .  .   refers  to the
        supplemental  lease agreement  and  in paragraph  5  it
        refers  to the lease.  The supplemental lease agreement
        makes a  distinction between  the two  terms, thus  the
        government's argument that the language only applies to
        SLA 14 fails of its own weight.
 
   Appellant's  Memorandum in Opposition  to Summary Judgment  at 4-
   5.[foot #] 5
 
        With  regard to  the Adelaide  Blomfield  decision cited  by
   respondent, appellant  notes that the  case was not decided  on a
   motion for summary relief.  Rather, the Board in that case held a
   two-week trial  during which the  entire background of  the lease
   and  addendum  at   issue  was  considered,  together   with  the
   negotiation  history,  testimony  of  appellant,  and  a detailed
   factual  determination as  to the  condition  of the  building in
   various stages of occupancy.  
 
        Appellant's point  is  well taken.   The  Board in  Adelaide
   Blomfield  reached its conclusion  only after  allowing extensive
   discovery to take place and inquiring into the negotiation of the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4     No authority is cited for this proposition.
 
        [foot #] 5     Appellant    makes    additional   arguments,
   pertaining  to  the  language  of  the lease  and  SLAs,  in  its
   opposition  to  the  motion  for summary  relief,  which  are not
   discussed  herein, as  the Board  does not  find it  necessary to
   address these arguments in order to resolve the motion.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   lease and the relevant  SLA.   We have not had the opportunity to
   develop the record in  this case, and the instant case presents a
   different factual circumstance. 
 
 
        In  Carmon Construction,  Inc.,  GSBCA  13412,  96-2  BCA   
   28,354,  this Board ruled on a summary relief motion in which the
   Government  asserted  that  the  interpretation   of  a  contract
   provision was  clear and  unambiguous, or  alternatively, if  the
   provision  was ambiguous, the  ambiguity was patent,  not latent,
   creating an  affirmative duty  on the part  of the  contractor to
   clarify.  Denying the Government's motion, the Board stated:
 
        Under  the scheme of interpretation we follow, once the
        meaning of a  given contractual  provision is  properly
        brought  into dispute,  we must  ascertain  the meaning
        each party  intended  to convey  by its  assent to  the
        language  of the  contract.    While  this  search  for
        meaning  need not invariably lead to a factual inquiry,
        it obviously tends in that  direction, and as a general
        matter  the need  for a  factual  inquiry increases  in
        proportion to the obscurity of  the contractual scheme.
        . . . 
 
        As this Board  stated in Tera Advanced  Services Corp.,
        GSBCA 6713-NRC, 83-1 BCA   16,300, at  81,004, "[i]n an
        opinion  on a  motion for summary  judgment, we  do not
        have  to get  all  the  way  to the  bottom  --  it  is
        sufficient  to acknowledge that on the present state of
        the  record we  cannot do  so.  . .  .  [i]f there  are
        legitimate  questions about what the contract means . .
        . we  must make  further inquiry  before deciding  that
        issue."    The  present  case  requires  precisely such
        further inquiry.
 
   96-2 BCA at 141,585-86.
 
        The   instant  case  presents  a  similar  situation.    The
   respondent interprets the  lease such that it does  not include a
   general restoration clause, and appellant interprets the lease to
   include  such a  clause, albeit  in a  SLA that was  entered into
   after  the  original  lease execution  and  before  the appellant
   purchased the  property.  This  gives rise to issues  of material
   fact as to what interpretation, if any, the parties  to the lease
   had regarding this provision when it was executed.  What has been
   presented  by  respondent  in  support  of  this  motion  is  its
   counsel's  interpretation  of  the  contract and  the  SLA.    No
   evidence has been  submitted from the individuals  who negotiated
   the original lease or SLA 14  on behalf of the respondent or  the
   previous lessor.   Additionally,  the condition  of the  building
   both before  and after the  purchase has also  been raised as  an
   issue  on summary  relief, without  the  record being  adequately
   developed.  Findings 12, 18.   Accordingly, as issues of material
   fact are  in dispute, respondent's  motion as to this  portion of
   appellant's claim is denied.
   Appellant's Claim for Purchasing and Installing Specific Property
 
 
        The  second portion of appellant's claim is compensation for
   purchasing and installing  specific property allegedly wrongfully
   removed by respondent in the amount of $101,413.30.  The property
   allegedly  wrongfully  removed  included  two  temporary  holding
   cells;   built-in  bookshelves;    judges'  bench  material;  and
   various door  strikes, locks, and control buttons  for ten doors.
   Finding 27.   The holding  cells, bookshelves, and  judges' bench
   material were  previously located at other  Government facilities
   and installed during the respondent's lease.  The door components
   were installed during the build-out of the third floor.  Findings
   28-30.  
        Respondent makes various arguments as to its right to remove
   this property.  The first  is that the articles of property  were
   "trade  fixtures," i.e., articles  annexed to realty  by a tenant
   for  the purpose  of carrying  on a trade  or business  which are
   considered personalty rather than  being part of the realty,  and
   are therefore  removable by the  tenant.  Respondent  also relies
   upon the Alterations clause in the original lease, which reads as
   follows:
 
        The   Government  shall  have   the  right  during  the
        existence  of this  lease to  make alterations,  attach
        fixtures and  erect additions, structures,  or signs in
        or  upon the  premises hereby  leased, which  fixtures,
        additions, or structures so placed in, upon or attached
        to the said  premises shall be and  remain the property
        of  the  Government  and may  be  removed  or otherwise
        disposed of by the Government.
 
   Finding 2.  
 
        Appellant responds as follows:
 
        Respondent attempted to state  that certain items  were
        removable  by the  Government  without considering  the
        lease.    The  lease provides,  "It  is  understood and
        agreed  that  the  Government  retains  title  to   all
        removable  property covered  by this  agreed agreement.
        SLA 14, Clause 5, Exhibit 2. . . .  At no time does the
        Government  attempt   to  define   removable  property.
        Moreover, the Government by its contract did not intend
        to retain title (ownership)  to non-removable property.
        . .  .   Consequently the  Government's argument  about
        trade fixtures is inapplicable  to this case. . . .  If
        removable means what  it says, the  items here are  not
        removable in  the common sense  of the word.   The jail
        cells were built-in,  the bookcases were built-in,  the
        judges' benches were  built-in, and also the  locks and
        strikes were  part of the  doors.  In any  event, these
        items  need to  be subject  to  discovery to  determine
        their  status.  By  merely labeling them  doesn't prove
        anything.   Respondent labels jail cells  as temporary,
 
        yet they were built into place as were the other items.
        . .  .   Without discovery  no one  can tell how  these
        items were  attached  to  the  realty, but  it  had  to
        believe  that a cell  is part  of the  trade of  a U.S.
        Marshall [sic].   Nowhere is trade or  business defined
        by the  respondent.   Thus the  articles are  not trade
        fixtures  because  the  burden  is   on  respondent  to
        establish this fact and there is no undisputed facts to
        support  this contention.   In summary, the  title only
        remains  in the  Government in  removable items,  which
        these are not,  and there is  [sic] no undisputed  fact
        saying they are,  and secondly, even if  trade fixtures
        are removable, these  have not been proven to  be trade
        fixtures.
 
   Appellant's Memorandum in  Opposition to Summary Judgment  at 10-
   12.
 
        Both parties'  arguments on this  issue fail to  analyze the
   issue  properly.  Neither  respondent's nor appellant's arguments
   focus on  the primary issue  necessary to resolve this  claim for
   removal of property -  whether the items  are fixtures.  We  need
   not determine  whether the items at  issue are a  special type of
   fixture - "trade fixtures" - as suggested by respondent, nor must
   we  determine  if  the  items are  "removable,"  as  suggested by
   appellant.   We need  only determine if  the items  are fixtures,
   because the  Alterations clause of the original lease clearly and
   unambiguously gives the Government the right during the existence
   of this lease  to "make  alterations, attach  fixtures and  erect
   additions, structures  . . .  in or upon the premises . . . which
   fixtures, additions, or structures so placed in, upon or attached
   to the  said premises shall  be and  remain the  property of  the
   Government and  may be  removed or otherwise  disposed of  by the
   Government."  Finding 2.   
 
        Appellant  cites in  its Opposition  to  Summary Judgment  a
   state court decision, Appeal of Sheetz, Inc., 657 A. 2d 1011 (Pa.
   Commw. Ct. 1995), which discusses the concept of fixtures in real
   estate law.  The court stated:
 
        A  fixture  is an  article  in the  nature  of personal
        property which has  been so annexed to  the realty that
        it is regarded as part and parcel of the land.  Black's
        Law Dictionary 575 (5th Ed. 1979). 
 
        In addressing whether chattel or an article of property
        becomes so affixed to the  land that it becomes part of
        the real  estate, we stated  in Gore v.  Bethlehem Area
        School District, 113 Pa. Commonwealth Ct. 394, 398, 537
        A.2d 913, 915 (1988) that:
    
             The considerations to  be made in determining
             whether or  not a chattel  becomes a  fixture
             include  (1)  the  manner   in  which  it  is
 
             physically  attached  or installed,  (2)  the
             extent  to  which  it  is  essential  to  the
             permanent  use  of  the  building  or   other
             improvement,  and (3)  the  intention of  the
             parties who attached or installed it.
 
   657  A.2d at  1013.    This explanation  is  consistent with  the
   general  principles of  law governing fixtures.   See  Lemmons v.
   United States, 496 F. 2d 864 (Ct. Cl. 1974).
 
        Without belaboring  this issue, personal  property which  is
   attached to realty either remains personal property of the tenant
   or  becomes a fixture and part of  the realty, depending upon the
   three  considerations  above.   Generally,  if the  items  are so
   attached  as to  become  fixtures, they  become  property of  the
   landlord.  Appellant attempts to  suggest that because the  items
   at issue  are permanently affixed, and not  "removable," they are
   therefore fixtures - - the Government  does not have the right to
   remove them, because the items  are not the Government's property
   and become that of the landlord.   Appellant would be correct but
   for the  Alterations clause of  the lease, which  expressly gives
   the Government the right to  attach fixtures, retain title to the
   property, and  remove that property if  it desires.   There is no
   need  to  make the  factual  inquiry  suggested by  appellant  to
   determine how  these items were affixed  to the realty.   If they
   were affixed such that they were easily removable, they would not
   be fixtures but remain personal property and the Government would
   have the right to remove them.  If they were affixed so they were
   not  removable, and  therefore  fixtures,  by  operation  of  the
   Alterations clause of the lease they still remain the property of
   the Government and may be removed by the Government.
 
        As there are  no material facts at issue  as to this portion
   of the  claim, and  appellant is  not entitled to  recovery as  a
   matter of law,  appellant's claim in  the amount $101,413.30  for
   purchasing and installing specific property allegedly  wrongfully
   removed by respondent is denied.
 
                                Decision
 
        Respondent's motion for summary relief is GRANTED IN PART as
   stated herein.
 
                                      __________________________
                                      ALLAN H. GOODMAN
                                      Board Judge
   We concur:
   ___________________________             _________________________
 
                                           __
   STEPHEN M. DANIELS                 ANTHONY S. BORWICK
   Board Judge                             Board Judge