PA appellate court: right to counsel attaches where incarceration is threatened

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03/03/2020, Litigation, Civil Contempt in Family Court

Following up on a NCCRC-assisted victory regarding the right to counsel when a person faces incarceration for inability to pay criminal fees/fines (called Commonwealth v. Diaz,191 A.3d 850 [Pa. Super. Ct.2018]), a Pennsylvania appellate court considered whether the right to counsel also attaches when a court imposes fees in a family law context and then incarcerates a litigant for inability to pay such fees.  The court ruled in B.A.W. v. T.L.W. that the right to counsel does attach, notwithstanding that the money was owed to a private party. 230 A.3d 402 (Pa. Super. Ct. 2020).  It relied on Diaz to hold that "The trial court imposed incarceration as a sanction, creating a clear likelihood of imprisonment ... The trial court should have then ascertained 'whether [Father was] entitled to court-appointed counsel.'" (quoting Diaz, 191 A.3d at 866)


In 2024, Diaz was again extended to apply in the context of non-financial child support obligations.  In Montgomery v. Drummond, a father allegedly failed to appear, provide requested information, or comply with job search requirements. No. 388 MDA 2023, 2024 WL 244076 (Penn. Super. Ct. Jan. 23, 2024) (unpublished).  He was found in contempt and sentenced to imprisonment at a hearing during which he was unrepresented.  The appellate court reversed and remanded, agreeing with the appellant that he had a right to counsel under Diaz:


Here, Drummond faced a likelihood of incarceration for civil contempt. He therefore had a right to counsel under Diaz, and he did not waive the right. Accordingly, the court erred in failing to appoint counsel. That the civil contempt in Diaz arose from the failure to pay court fines rather from a child support matter is irrelevant, as both this case and Diaz involved civil contempt proceedings where incarceration was likely. We vacate the contempt and sentencing order and remand for the appointment of counsel and a new hearing.


Diaz, 2024 WL 244076 at *4.




Note:  Unpublished cases may not be cited or relied upon except when relevant under law of the case, res judicata, or collateral estoppel. Boring v. Erie Insurance Co., 434 Pa. Super. 40, 641 A.2d 1189 (1994) (citing Internal Operating Procedures of Superior Court of Pennsylvania, Rule 444B); see also Superior Court of Pennsylvania Notice to the Bar, 598 A.2d 1324 (1991).  Any unpublished decisions are included here for illustrative purposes only. 

Appointment of Counsel: categorical Qualified: yes



The NCCRC co-wrote one of the amicus briefs in the case.