PA Superior Court extends RTC to child support incarceration

In E.M.R. v. C.A.F., the Pennsylvania Superior Court vacated a contempt order brought by the government where the trial court imposed incarceration for failure to pay child support, but suspended the sanction so long as the father didn’t miss future payments. 251 A.3d 1242 (Pa. Super. 2021) (Table).  The father, pro se at trial, was represented by appointed counsel on appeal. In its remand instructions, the Superior Court, citing Commonwealth v. Diaz, 191 A.3d 850 (Pa. Super. Ct. 2018), stated, “Appellant’s appointed counsel must continue to represent Appellant as long as Appellant is indigent and the trial court continues to find a likelihood of imprisonment due to contempt.” E.M.R., 251 A.3d at 1242 n.5.

Then, in Hamm v. Harris, 335 A.3d 366 (Pa. Super. Ct. 2025), the Superior Court considered the waiver question.  The trial court had found that the defendant had waived his right to counsel because he had been informed of what he needed to do to obtain counsel but showed up at the next hearing without counsel and answered affirmatively when the judge asked him if he was willing to proceed pro se.  But the Superior Court pointed out the judge had not followed the colloquy guidelines provided in Pa.R.Crim.P. 121(A)(2) regarding waiver, and so reversed.  The extension of the criminal waiver rule to a civil case is significant, although the Superior Court had done so in 2024 in an unpublished opinion.