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A spouse’s death is not an “act of God” that would excuse a lawyer’s failure to timely deliver an agreed-upon settlement, a Philadelphia judge has ruled. In B&R Services for Professionals Inc. v. Stein & Glazer, Common Pleas Judge Joseph A. Dych reasoned that most case precedent defining “acts of God” refers to natural phenomena such as lightning, tornadoes or earthquakes. He concluded that the decision to sanction the defendants for failure to deliver settlement should be affirmed by the Superior Court. According to the opinion, the settlement had been reached in May 2003 and partially paid shortly thereafter. After defendant Neil H. Stein’s wife died from cancer, he stopped practicing and did not return to his office until August 2004, Dych wrote in the opinion. “The circumstances surrounding defendants’ excuse for failure to deliver settlement funds … are certainly unfortunate; however, a party to an agreement cannot be excused from performing because an event makes it impracticable to perform, unless the non-occurrence of that event was a basic assumption on which the agreement was made,” Dych wrote. “The illness of a family member which leads [to] one voluntarily removing himself or herself from engaging in business is not an ‘act of God’ that would discharge the performance of a contract.” The matter stems from a $5,662 judgment entered in favor of B&R — and against defendants Stein & Glazer, Stein and Wendy Glazer — in Municipal Court in April 2002. That judgment was appealed, and the matter was remanded for arbitration, at which the arbitrators’ entered an award in favor of B&R for $8,962, according to the opinion. Subsequently, counsel for B&R sent Stein a written settlement agreement (for an amount not disclosed in the opinion) which was later signed by Stein & Glazer and Stein himself, according to the opinion. The court marked the case as settled in early May 2003. In late May of that year, after counsel for B&R sent two letters demanding payment of the settlement amount, $1,000 was sent to B&R, according to the opinion. Another letter demanding payment was sent in February 2005. In April 2005, a common pleas court granted B&R’s motion for sanctions for failure to deliver settlement. “Defendants claimed … that, due to an act of God, being that Stein’s wife collapsed and passed away due to a malignant tumor, he removed himself from the practice of law and did not effectively return to his office until Aug. 24, 2004,” Dych wrote. Dych argued that B&R’s motion for sanctions had been properly granted. Under Philadelphia Civil Rule 229.1, he wrote, sanctions for failure to deliver settlement funds can be ordered by the court 20 days after the signing of the release. And under Pennsylvania case, he continued, settlement agreements are subject to general contract law principles. Before turning to the “act of God” issue, he rejected the argument that the individual defendants were not parties to the settlement agreement. “The letter confirming settlement was addressed to Stein, without reference to Stein & Glazer, P.C. in the address header, the agreement did not contain a release of Stein individually, and he signed the agreement both in his name and in the name of Stein & Glazer, P.C.,” Dych wrote. In analyzing Stein’s “act of God” argument, Dych cited a 1903 decision from the Superior Court. “An act of God includes unpreventable occurrences, such as ‘natural accidents or disturbances, such as lightning, earthquakes, tempests, tornadoes, etc., impossible to be foreseen and therefore impossible to be guarded against,’” Dych wrote, quoting the opinion in Dixon v. Breon. “While this court sympathizes with Mr. Stein’s state of affairs,” he concluded, “local rule 229.1 necessitates granting plaintiff’s motion to enforce settlement.” B&R’s attorney was solo practitioner Kenneth Baritz. Stein represented himself in the matter. Neither immediately responded to calls seeking comment.

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