PA Superior Court: right to appointed counsel where there is a likelihood of imprisonment for failure to pay cost
In B.A.W. v. T.L.W., 230 A.3d 402 (2020), the Pennsylvania Superior Court held that the trial court abused its discretion when it imposed incarceration as a sanction for the failure to pay a cost but failed to inquire whether the party was entitled to appointed counsel. The trial court issued a contempt order against the father for failing to pay for his third of the custody evaluation cost, which was court-ordered but payable to a third party. On appeal, the Superior Court analogized to Commonwealth v. Diaz. The Court determined that whether the cost was payable to a government or a third party if the sanction for failure to pay was incarceration, which creates a likelihood of imprisonment, the trial court was required to ascertain whether the party was entitled to appointed counsel. Citing Diaz, the Court held that if, on remand, the trial court determines that there is a likelihood that the father could be imprisoned for contempt and that the father is indigent, then the court must appoint counsel.
