Although civil forfeiture claimants are not entitled to court-appointed counsel, they must be notified of their right to obtain counsel, the Pennsylvania Commonwealth Court held in Com. v. Real Property and Improvements at 2338 N. Beechwood St., __ A.3d __ (No. 631 C.D. 2012, filed March 15, 2016). The claimant in this case, Takeela Burney, faced forfeiture of her Philadelphia home following the arrest of her son and another individual for conducting a sale of crack cocaine at the front door. Burney appeared pro se at the forfeiture hearing and did not present witnesses, cross-examine the Commonwealth’s witnesses, object to any evidence, or attempt to assert any defense. The trial court ordered the property forfeited. Burney obtained counsel and appealed. The Commonwealth Court vacated and remanded for a new hearing, holding that Burney did not receive due process because she was neither advised of her right to a jury trial nor knowingly and intelligently waived that right. The Supreme Court allowed the Commonwealth’s appeal, vacated the intermediate appellate court’s order, and remanded for consideration of Burney’s remaining appellate issues.
On remand, the Commonwealth Court again vacated the trial court’s order and remanded for a new hearing. Writing for the unanimous en banc panel, Judge Brobson rejected Burney’s argument that she was entitled to court-appointed counsel as a matter of due process in light of Supreme Court precedent holding there is no such right in forfeiture proceedings. Nevertheless, the Court observed, Burney did have a right to be represented by counsel, and the Commonwealth offered no evidence that she was aware of that right and chose to represent herself. Noting that the Forfeiture Act is silent on a party’s right to be represented by counsel, the Court held that Rule of Civil Procedure 1018.1 “fills the gap” by mandating that a notice of forfeiture, like any other notice to defend in a civil case, must inform the defendant of his or her right to legal representation and how to secure representation if the defendant is indigent. Because Burney did not receive the notice required by Rule 1018.1, the Court could not conclude that she made a conscious choice to proceed pro se and, accordingly, remanded for a new hearing.