Gaspar v. Kassm

60 F.R.D. 22, 1973 U.S. Dist. LEXIS 13118
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 19, 1973
DocketCiv. A. No. 69-1192
StatusPublished
Cited by1 cases

This text of 60 F.R.D. 22 (Gaspar v. Kassm) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaspar v. Kassm, 60 F.R.D. 22, 1973 U.S. Dist. LEXIS 13118 (E.D. Pa. 1973).

Opinion

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

Presently before the Court is the defendant’s motion for a new trial. The above captioned case is a civil suit to recover money damages for personal injuries sustained from an automobile accident which occurred on May 29, 1967. The plaintiff is a young man, who was a minor at the time of the ■ accident and when this action was commenced, but who was over twenty-one years of age at the time of trial. He was a resident of Springtown, Bucks County, Pennsylvania, and attended Palisades High School which is located a short distance from his home. The accident in question occurred one week before the plaintiff’s high school graduation, when he was a passenger in a car with four other high school students returning from school. The road upon which the plaintiff was [24]*24traveling was a hilly and curving two lane highway. The accident occurred on a one lane bridge located in a curve of the road.

The defendant, Muhammed Rafik Kassm, is a native of the Syrian Arab Republic, who, at the time of the accident, was employed as a teacher of accounting at Lafayette College. At the time of trial, the defendant was on the faculty of Rensselaer Polytechnic Institute in Troy, New York. When the accident occurred, the defendant was alone in his car, and he admits having lost his way.

The defendant approached the bridge on a down grade turning to the right. His visibility was partially obscured by rain. The defendant’s vehicle collided with the third party defendant’s vehicle left front to left front, and each driver maintained that he was on his own side of the road, and that the other driver was negligent. The plaintiff, seated in the front seat next to the driver, struck the windshield with his face and sustained facial lacerations which necessitated plastic surgery and left certain residual scarring.

This suit was brought by Ondrey Gas-par and his parents, Frank S. and Grace K. Gaspar, against the defendant Kassm, who in turn joined as a third party defendant, Dennis L. Smetzer, a classmate of the plaintiff and the driver of the car in which the plaintiff was a passenger.

By letter dated January 8, 1973, this Court notified all parties that the trial of this case was scheduled to begin on February 14, 1973. At the time of this letter, Mr. Kassm was visiting Damascus, Syria; however, he knew of the scheduling of this case before he left. See Notes of Testimony, page 5. It is the Court’s understanding, that when this case appeared in the trial pool, the attorney for the defendant contacted my scheduling clerk and was advised that the case would be called for trial on February 14, 1973. This contact was made by telephone, and was made early enough to relay this information to the defendant. In any event, there is no dispute that the defendant was advised of the scheduling of this trial since December of 1972 or earlier. See Defendant’s Motion for Continuance.

The trip to Syria was in the nature of a Christmas vacation, and the defendant was scheduled to resume his teaching duties at Rensselaer Polytechnic Institute on January 22, 1973. The defendant’s return on January 22, 1973, would have allowed approximately three weeks for trial preparation. However, shortly after January 22, 1973, defendant’s counsel attempted to contact his client and was advised by his client’s employer, Rensselaer Polytechnic Institute, that Mr. Kassm had not returned from Syria because of illness. Defense counsel notified the other parties involved in this case by telephone, and he communicated with the Court by letter, requesting a postponement of the trial. Defense counsel subsequently filed a motion for continuance, a supplemental motion for continuance, and made an oral supplemental motion for continuance before the start of trial on February 14, 1973. All of these above motions were denied, and from those denials, defendant takes exception and requests a new trial.

Viewed from the perspective of. this Court, which is the setting from which this Court must judge whether or not it abused its discretion in denying the motion for continuance, the following events took place:

1. Some time in December of 1972, defense counsel and the defendant were informed of the date this case would be called to trial.

2. By letter of January 8, 1973, this Court formally notified all parties of the February 14th listing.

3. By letter dated February 2, 1973, received in this office on February 5, 1973, this Court was informed that on February 1, 1973, defense counsel learned that his client, while on a visit to Syria, sustained a back injury and [25]*25would be delayed in returning to this Country. Defense counsel, therefore, requested a continuance of the trial.

4. By letter dated February 6, 1973, this Court denied the defendant’s motion for a continuance.

5. On February 9, 1973, defense counsel filed a formal motion for continuance. Supporting this motion was a telegram from the defendant’s wife consisting of four words: “Rafik is seriously ill.”

6. On February 12, 1973, defense counsel filed a formal supplemental motion for continuance, in support of which he annexed a letter from the defendant’s wife, bearing a Damascus, Syria postmark and stating:

“With reference to your wire which I received today, I would like to inform you that my husband’s recovery from his illness is not completely determined yet. His doctor expect (sic) that he might be able to resume his normal activities within 3-6 months.
If I can be of any help, please just let me know.
Very truly yours,
Mrs. Rafik Kassm
(Acila Kassm)”

By order dated February 13, 1973, this Court denied the motion for continuance and the supplemental motion for continuance, and the case went to trial on February 14th in the absence of the defendant. In lieu of the defendant’s testimony, defense counsel read to the jury a transcript of the defendant’s deposition taken in a prior action involving the same accident. That action was an arbitration proceeding in Bucks County, in which Kassm was the plaintiff and Dennis L. Smetzer was the defendant. In the Bucks County arbitration, Mr. Kassm was represented by personal counsel, rather than counsel for his insurer who represented him in this action.

The trial resulted in a verdict of $52,259.40 in favor of the plaintiffs and against the defendant, and the jury also found in favor of the third party defendant Smetzer. The verdict was somewhat higher than the expectations of most observers; however, it was not so extraordinary as to warrant a new trial on the basis of excessiveness, and no allegation of excessiveness has been raised by the defendant in his motion for a new trial. The sole ground asserted by the defendant in his motion is the prejudice resulting from his absence at the trial, and the denial of his motions for continuance.

The decision whether or not to grant a motion for continuance sought on grounds of a party’s unavailability for trial generally rests in the trial court’s discretion.

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60 F.R.D. 22, 1973 U.S. Dist. LEXIS 13118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaspar-v-kassm-paed-1973.