The Commonwealth Court, in the matter of Commonwealth v. The Real Property and Improvements at 2338 N. Beechwood St., Phila., PA 19132 (Appeal of: T. Burney), 631 C.D. 2012 (March 15, 2016), has vacated the trial court’s order granting the Commonwealth’s Forfeiture Petition and has remanded the matter for a new hearing because of the Commonwealth’s failure to notify Claimant of her right to counsel.


Burney is the Claimant in a Forfeiture matter that was filed by the Commonwealth, seeking the forfeiture of her home at 2338 N. Beechwood Street, Philadelphia, Pennsylvania (the Property) on several grounds under the Forfeiture Act. Although there was testimony about drug activity at the home, Burney was never convicted, let alone accused of, a crime related to this matter. In a previous decision related to this same case, the Commonwealth Court remanded the matter to the trial court, holding that Burney should have been advised of her right to a jury trial on the Forfeiture Petition and that any waiver of that right had to be knowing, intelligent, and on the record.

Prior to the Hearing now at issue, Burney did not file an Answer to the Forfeiture Petition, and neither Burney nor the Commonwealth filed interrogatories or conducted discovery. On March 13, 2012, a hearing on the Forfeiture Petition took place before the trial court.

At the forfeiture hearing, Burney, who is indigent, appeared pro se (represented herself). Burney did not present witnesses, cross-examine the officer, object to testimonial or documentary evidence, or attempt to assert the innocent owner defense or other constitutional challenges that may have been available to her. When it was Burney’s turn to cross-examine the officer, the trial court prompted her by asking if she had any questions for the officer. Stating that she did, Burney proceeded to make statements rather than ask questions. The trial court told her that it was not her turn to tell her story and inquired whether she had any questions to which she replied, “Not at this time.”

At the conclusion of the hearing, the trial court ordered the home forfeited and transferred to the custody of the Philadelphia District Attorney’s Office. Burney, who, by that time, was represented by pro bono counsel, timely appealed to the Commonwealth Court. Of the many issues raised were (1) the failure of the Commonwealth to inform Burney, that she had a right to a jury trial and that she could assert affirmative defenses to the Forfeiture Petition, including an innocent owner defense and (2) not appointing counsel for Burney, free of charge to her.


(1) Whether due process requires the Commonwealth to notify the Claimant in a Forfeiture Proceeding of the right to be represented by counsel and where the Claimant may be able to secure legal assistance at reduced or no cost and (2) whether an indigent Claimant is entitled to court-appointed counsel in a Forfeiture matter?


(1) The Commonwealth must provide fair notice of the right to legal representation to a forfeiture Claimant and information on where the Claimant can secure legal representation if they cannot afford counsel.

(2) Although a Claimant has a right to be represented by counsel, the Claimant does not have a right to free, court-appointed counsel.


Burney argued that due process required the trial court and the Commonwealth to do more to advise her of her rights attendant to the forfeiture proceeding in order to ensure she had a meaningful opportunity to participate and protect her property interest. She further argued that, due to her indigency, she should have received court-appointed counsel.

In considering the parties’ issues and arguments, the Commonwealth Court acknowledged that it must consider whether a Claimant has been afforded procedural due process in the forfeiture proceeding. Burney contended the proceeding before the trial court was “fundamentally unfair and lopsided” in favor of the Commonwealth, represented by counsel trained specifically on the law applicable to civil forfeiture proceedings. Contrast this with Burney, indigent and proceeding pro se, who simply did not have the knowledge, training, background, and experience to know what rights she had, let alone how to assert those rights in a court proceeding.

The PA Supreme Court promulgated Rule 1018.1 of the Pennsylvania Rules of Civil Procedure, concluding that every civil defendant must be afforded such notice. The Commonwealth Court reviewing Burney’s claim concluded that those whose property is sought by the Commonwealth through civil forfeiture proceedings should therefore be entitled to nothing less.

That said, the Commonwealth Court also explained that the right to be represented by counsel cannot be equated with the right to receive court-appointed counsel. The right to be represented by counsel in civil proceedings is one accorded to all individuals. However, all civil litigants do not have the right to court-appointed counsel.

The Commonwealth Court concluded that Burney was clearly entitled to some level of due process protection commensurate with her property interest in her home (the Property), which the Court balanced against the government’s strong interest reflected in the Forfeiture Act. Providing court-appointed counsel to every indigent claimant may impose a financial burden on the government; however,requiring the Commonwealth to incorporate the notice of the right to counsel in its notice to claimants under the Forfeiture Act does not impose any greater burden on the Commonwealth than every other plaintiff bears in civil litigation in our Commonwealth. Finally, the Commonwealth Court found that informing claimants of their right to be represented by counsel and where they may be able to secure legal assistance at reduced or no cost may also limit the risk of erroneous deprivations of property, particularly in cases like this one, where Burney was never convicted, let alone accused of, a crime. Such claimants, who did not receive the level of due process afforded in a criminal proceeding, deserve a fair hearing in a civil court of law.


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