A Pennsylvania medical malpractice trial began on September 25, 2023 and ended on September 28, 2023. Defendant Peter Gross, D.O. (“Dr. Gross”) did not attend the first day of trial because it was Yom Kippur, but he attended trial on each of the remaining days. On the last day of trial, after closing arguments and jury instructions, the jury deliberated and reached a verdict in the amount of $3,500,000 in favor of the plaintiff and against the defendants, including Dr. Gross. Dr. Gross appealed, arguing that the trial court abused its discretion when it refused to continue the start of trial for one day so that he could observe Yom Kippur.
Pennsylvania Rules of Civil Procedure Rule 216. Grounds for Continuance states:
(a) The following are grounds for a continuance:
(4) Such special ground as may be allowed in the discretion of the court;
(c) No application for a continuance shall be granted if based on a cause existing and known at the time of publication or prior call of the trial list unless the same is presented to the court at a time fixed by the court, which shall be at least one week before the first day of the trial period. Applications for continuances shall be made to the court, or filed in writing with the officer in charge of the trial list, after giving notice of such application by mail, or otherwise, to all parties or their attorneys. Each court may, by local rule, designate the time of publication of the trial list for the purposes of this rule.
While certain exceptions exist to the general rule, whereby the court may in its sound discretion grant a request for a continuance due to the absence of a party or witness, the court may still demand a showing of diligence on the part of the movant before so granting. An appellate court opinion from 1998 held that the trial court did not abuse its discretion in denying appellants’ continuance motion because appellants waited until first day of trial to move for continuance, despite receiving the notice of the trial date approximately one month earlier and it could reasonably be assumed that appellants were aware of the need for continuance when they first received the notice of the trial date.
Dr. Gross’s Appeal
Dr. Gross argued on appeal that the trial judge abused his discretion by prioritizing docketing concerns over Dr. Gross’s request to delay the start of his trial by one day or to make other accommodations so that Dr. Gross could both observe the most solemn holy day in Judaism and attend the trial against him, thus forcing Dr. Gross to choose between his fundamental due process right to attend trial and his right to free exercise of religion under both the federal and Pennsylvania constitutions.
The Superior Court of Pennsylvania stated in its Memorandum Per Curiam filed on April 2, 2025: “In closing, our decision should not be interpreted as foreclosing continuance requests based upon religious observances. Rather, we simply mean to amplify the notion that courts may demand a showing of diligence on the part of the movant before granting such requests. Here, Appellants knew about their trial date over a year in advance. A quick calendar search would have revealed the trial’s conflict with Yom Kippur, and Appellants could have moved for a continuance weeks or months in advance. Appellants, however, waited until the eleventh hour, after the scheduling of expert witnesses, to
request a continuance. Under these circumstances, Appellants failed to act with diligence, and we cannot say that the court abused its discretion in denying the request.”
Source DiMeo v. Gross, D.O., No. 280 EDA 2024.
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