                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2002

USA v. 15.32 Acres of Land
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1578




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"USA v. 15.32 Acres of Land" (2002). 2002 Decisions. Paper 720.
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                                                               NOT PRECEDENTIAL

                   THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 01-1578
                                     ___________

                          UNITED STATES OF AMERICA

                                           v.

       15.32 ACRES OF LAND, MORE OR LESS, SITUATED IN MONROE
         COUNTY, COMMONWEALTH OF PENNSYLVANIA; AT, INC.

                                               AT, Inc., Appellant
                                     ___________

          ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                              (D.C. Civil No. 98-cv-01139)
                   District Judge: The Honorable William J. Nealon
                                     ___________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 31, 2002

   BEFORE: NYGAARD and WEIS, Circuit Judges and IRENAS,* District Judge.


                              (Filed: November 7, 2002)

                                     ___________

                             OPINION OF THE COURT



*       Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
                                       ___________


NYGAARD, Circuit Judge.

              In 1953, the U.S. Army leased 15.32 acres of land located in the Tobyhanna

Army Depot to AT, Inc.’s predecessor in interest, Tobyhanna Village, Inc., to develop an

apartment complex for Army personnel working at the army depot. In 1998, the

Government took the remaining years of the leasehold by eminent domain. At issue before

the District Court was the duration of AT’s leasehold interest in the property condemned by

the Government. The District Court granted summary judgment, determining that AT’s

leasehold interest expired in 2004. We will affirm.

              The 1953 lease granted a leasehold interest for seventy-five years, but

qualified that interest by permitting the lessor to terminate the lease after fifty and one-half

years. In 1984, the Government (through the Department of the Army) entered into

Amendment No. 3 to the 1953 Lease with Tobyhanna Village, which extended the term of

the Lease for an additional twenty years.

              The District Court rejected AT’s argument that the 1984 Amendment

eliminated the termination clause by the “doctrine of necessary implication,” and held that

the Government retained its right to terminate the lease in 2004. Based on this holding, the

parties entered into a stipulation that just compensation for the leasehold (terminating in




                                             2
2004) amounted to $195,000, and the District Court entered a judgment for AT in that

amount.1

              Appellant argues that the 1984 Amendment to the lease modified the “right-

to-terminate” provision in paragraph 17(b) of the 1953 lease. In particular, Appellant

contends that the 1984 Amendment modified the 1953 lease by the “doctrine of necessary

implication,” and cites Barco Urban Renewal Corp. v. Housing Authority of Atlantic

City, 674 F.2d 1001 (3d Cir. 1982). In Barco, however, the contract expressly provided

plaintiff with the right of first refusal but failed to identify the period during which the right

had to be exercised. The court therefore added a reasonable time period by “necessary

implication.” Here, the parties specifically agreed that the Government had the right to

terminate the lease upon sixty days written notice.

              In summary, AT’s argument is meritless. The language of § 17(b) is

unambiguous and there is no showing that the retention of the “right-to-terminate”

provision after the Amendment was the result of fraud, accident or mutual mistake.

Therefore, § 17(b) on its face was unaffected by the Amendment and cannot be added to, or

subtracted from, by parol evidence. Because none of defendant’s theories allow § 17(b) to




1.      We have jurisdiction because Verzilli v. Flexon, 295 F.3d 421 (3d Cir. 2002) does
not apply. There was no issue of liability and the only contested issue was the value of the
lease. The sole relevant issue in the parties’ stipulation was the amount of damages and the
other matters in the stipulation were surplusage. The judgment is thus final under 28 U.S.C.
§ 1291.

                                              3
be added to, or subtracted from, by parol evidence, we affirm the trial court’s determination

that the government has the right to terminate the lease under § 17(b) as of 2004.




_________________________


TO THE CLERK:

             Please file the foregoing opinion.




                                           /s/Richard L. Nygaard
                                           Circuit Judge




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