Petrofsky v. United States

616 F.2d 494, 27 Cont. Cas. Fed. 80,169, 222 Ct. Cl. 450, 1980 U.S. Ct. Cl. LEXIS 54
CourtUnited States Court of Claims
DecidedFebruary 20, 1980
DocketNo. 840-71
StatusPublished
Cited by21 cases

This text of 616 F.2d 494 (Petrofsky v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petrofsky v. United States, 616 F.2d 494, 27 Cont. Cas. Fed. 80,169, 222 Ct. Cl. 450, 1980 U.S. Ct. Cl. LEXIS 54 (cc 1980).

Opinion

PER CURIAM: This case comes before the court, having been submitted on the briefs and oral argument of plaintiff, pro se, and defendant’s attorney, on plaintiffs exceptions to the recommended decision of Trial Judge Robert J. Yock, filed September 29, 1978, pursuant to Rule 134(h), and on plaintiffs motion, filed December 6, 1978, for an order to the defendant to produce documents. Upon consideration thereof, together with the responses and replies thereto, the court denies plaintiffs said motion to produce documents and since the court agrees with the trial judge’s recommended decision, as hereinafter set forth, it hereby affirms and adopts the decision as the basis for its judgment in this case. Accordingly, it is concluded that plaintiff is entitled to recover the sum of $570.18 in accordance with the decision entered herein on December 19, 1973 (203 Ct. Cl. 347, 488 F.2d 1394), but that plaintiff is not entitled to recover under Counts II and III of the petition. Judgment is entered for plaintiff for $570.18 with the petition otherwise dismissed.

OPINION OF TRIAL JUDGE

YOCK, Trial Judge:

This cases arises out of a contract for the sale and removal of smokeless gunpowder owned by the United States Navy. The contract was terminated for default more than 16 years ago. In the course of the protracted litigation which has followed, numerous dis[453]*453putes pertaining to the contract have been aired, several of which were resolved by this court’s Wunderlich Act review of the decision by the Armed Services Board of Contract Appeals. Petrofsky v. United States, 203 Ct. Cl. 347, 488 F.2d 1394 (1973); ASBCA No. 11863, 70-1 BCA ¶ 8272. However, the court also found it necessary to remand the case for trial on plaintiffs allegations of breach of contract contained in Counts II and III of the petition, as amended.

In Count II, plaintiff basically alleges that the Navy Ammunition Depots interfered with his removal of the gunpowder from the depots. In Count III, framed in the alternative, plaintiff basically alleges that the Navy unlawfully terminated the contract without giving sufficient notice contemplated by the terms of the contract. At the final pretrial conference held on May 2, 1977, the plaintiff abandoned all claims for breach of contract under Counts II and III save for those claims pertaining to interference and termination at the Navy Ammunition Depot (NAD), Hawthorne, Nevada for the last 3 months of the contract (February 18 to May 18, 1962). Trial was conducted on that basis, with the plaintiff proceeding pro se. For the reasons discussed herein, the plaintiff is not entitled to recover.

Facts

In 1960, the United States Navy held in storage substantial quantities of smokeless gunpowder which were deteriorating into an unstable condition. Since the powder retained some useful value if reprocessed or combined with other material, the Navy decided to dispose of it by sale and issued Sales Invitation No. B-80-60-171 on May 31, 1960, for that purpose.

Plaintiff submitted a bid for part of the offered quantity and on August 19, 1960, was awarded Contract No. N-17121478A for the sale and removal of 53,537,460 pounds of gunpowder stored at seven different Navy ammunition depots across the country, including NAD Hawthorne, Nevada. The powder was of various types and calibers, ranging in price from $0.00001 to $0,001 per pound (net weight), for a total purchase price of $2,318.70. Due to the hazardous nature of the material, the contract required [454]*454that loading be performed by the Government, for which the plaintiff was to pay a fixed loading charge of $0.0036 per pound (gross weight). An acceptable loading schedule was to be arranged by plaintiff at each particular depot.

The contract also included a removal schedule with monthly removal requirements which required that the powder at all depots other than NAD Hastings, Nebraska was to be removed within a year (August 19, 1960, to August 18, 1961); a 2-year removal period (August 19, 1960 to August 18, 1962) was allowed for the powder at NAD Hastings. The 1-year removal period applicable to NAD Hawthorne was extended by two contract amendments, the first extending the removal period by 6 months (to February 18, 1962), the second extending it by 3 additional months (to May 18, 1962). The extensions did not specifically impose any monthly removal requirements but did encourage the contractors including the plaintiff to ex-peditously remove the remaining powder.

Following the award plaintiff proceeded to arrange for the removal of the powder from the various depots. The nature of plaintiffs business was that of a "jobber” or purchaser for resale. Thus, plaintiff had no intention of using the powder himself, nor did he even have the means to remove the powder by himself. He would find buyers for the powder and then make the necessary arrangements for those buyers to pick up the powder (by rail or truck) from the various depots. In this manner a substantial amount of contract powder was removed during the original 1-year removal period and the first extension period of 6 months. By the end of that time (February 18, 1962), the majority of the powder yet to be removed under the contract was stored at NAD Hawthorne. The gross weight of this remaining gunpowder was 3,929,860 pounds; the powder was stored in 26,554 galvanized steel containers weighing 38 pounds each, so the net weight of the remaining powder was 2,920,808 pounds.

Plaintiff did not remove any of this powder from NAD Hawthorne during the second extension period of 3 months. Consequently, at the end of that period (May 18, 1962), the Government issued a notice terminating the contract for default with respect to that powder.

Plaintiff complains that during the second extension period of the contract (February 18 to May 18, 1962) the [455]*455Government interfered with the orderly removal of the powder from NAD Hawthorne in that it failed to provide the appropriate information requested and necessary for the removal operation. Specifically, plaintiff complains that the Government failed to provide access information (rail or truck) and information related to the outloading capacity of the depot. Failure to provide these two necessary information ingredients, the plaintiff maintains, kept him from removing the powder prior to the expiration date of the contract.

The plaintiff also complains that the Government unlawfully terminated the contract (which was an additional arbitrary and capricious act of interference) in that it did not give plaintiff the appropriate notice as contemplated under the terms of the contract.

As a result of these asserted actions, plaintiff alleges the Government breached the contract and that he suffered damages totalling approximately $350,000 based on the value of the undelivered containers, and the lost profits on a contract for resale of the undelivered powder. It is concluded that plaintiffs allegations of breach are without merit, and therefore plaintiff is not entitled to recover.

Discussion

I. Withheld Information Claim

The plaintiff concentrated his evidentiary presentation on his first breach of contract claim.

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Bluebook (online)
616 F.2d 494, 27 Cont. Cas. Fed. 80,169, 222 Ct. Cl. 450, 1980 U.S. Ct. Cl. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petrofsky-v-united-states-cc-1980.