When a district attorney dies in a smaller county in Pennsylvania, typically the office’s first assistant is sworn in as the county’s top law enforcement official.
That process, however, did not happen after Susquehanna’s district attorney passed away last month, and now two attorneys are claiming to be the county’s top prosecutor—with one having taken the oath of office and the other having been appointed by the county’s only commissioned judge.
The two lawyers have also taken their fight to the state Supreme Court. Although the case presents an issue of apparent first impression, it will be up to the justices to determine whether they will decide the case on the merits, or send it back to a trial court for further review.
The dispute began after Susquehanna District Attorney Robert Klein died on Dec. 27 at the age of 53. According to court documents, Klein had been suffering from cancer for several months, and he told the prosecutor’s office about the condition in either late May or early June.
Following Klein’s death, William Urbanski, who had been first assistant under Klein, sent a letter to Susquehanna County Court of Common Pleas Judge Jason Legg telling him that he had become the district attorney of the county pursuant to 16 P.S. Section 1404(b), which says that “in a county of the fourth through eighth class, the first assistant district attorney shall become district attorney” if any vacancy occurs. That portion goes on to say, “If the first assistant district attorney is unwilling or unable to serve, the judges of the court of common pleas shall fill the vacancy by the appointment of a competent person.”
However, Legg declined to swear Urbanski in to the position.
According to court papers, Legg instead determined that Urbanski was not a resident of Susquehanna County at the time of Klein’s death. Applying Section 1401(a), which says “the district attorney shall be a resident of the county” and “shall have resided in the county for which he is elected or appointed for one year next preceding his election or appointment,” Legg held that Urbanski was therefore “unable to serve” as district attorney.
Despite Legg’s holding, Urbanski had Luzerne County Magisterial District Judge James J. Haggerty, a “lifelong friend,” administer the oath of office on Jan. 1, an affidavit from Urbanski said. The ceremony took place at Urbanski’s family farm in Rice Township, Luzerne County, with members of Klein’s family in attendance.
In the meantime, however, Legg reached out to the Susquehanna Bar Association looking for applicants to fill what he deemed to be the vacant district attorney position, and on Jan. 5, Legg appointed attorney Marion O’Malley as the county’s district attorney.
Three days after O’Malley was appointed, Urbanski filed an emergency action with the Supreme Court, arguing that he had not been given a proper hearing on the issue and that the justices should determine him to be the county’s top law enforcement officer.
Although the situation has the potential to cause significant confusion for law enforcement within the county, according to court documents, Legg indicated on Jan. 5 that he would would not administer the oath of office to O’Malley and would recognize Urbanski as the acting district attorney until after a judicial determination has been made regarding her appointment. A court document from Legg indicated in a footnote that Urbanski was continuing to “serve as first assistant DA of Susquehanna County and as such possesses the power of the DA in an acting capacity.”
Urbanski’s attorney, Bruce L. Castor Jr., said Monday that all the parties have been acting on good terms.
“I think Judge Legg was very prudent,” Castor said. “Nobody is desirous of something blowing up and creating a big county problem.”
O’Malley is being represented by Kleinbard LLC attorney Matthew Haverstick.
“We’re hoping for a swift resolution from the Supreme Court that affirms Ms. O’Malley’s appointment as the rightful district attorney,” Haverstick said.
Although the parties have been working amicably toward a fast resolution of the dispute, Urbanski, Legg and O’Malley are not without some history.
Before becoming the county’s only commissioned judge, Legg served as the county’s district attorney and O’Malley served as his first assistant—the only assistant district attorney in the office, according to the Rocket-Courier newspaper.
In 2015, Legg announced his candidacy for a then-vacant spot on the Common Pleas Court bench, and both O’Malley and Klein vied for the position.
O’Malley, who by then had spent nearly 15 years as an assistant district attorney, eventually lost the Republican nomination by 36 votes out of 5,089 cast—less than one hundredth of 1 percent—in the 2015 primary. Klein then ran unopposed in the general election.
Castor said the case presents the Supreme Court with the first-impression issue of how the two sections of the law are meant to be read together.
“What the Supreme Court is going to have to wrestle with is, did the legislature specifically intend to carve out this exception,” Castor said. “A great argument can be made that they did simply because the General Assembly didn’t want that conflict of interest, or appearance of one, where you have the one judge appointing the prosecutor, which can come up in these small counties.”
Castor is acting as a special assistant district attorney in the case, according to court papers he filed. He said that Urbanski is paying attorney fees from his own money, and that, after the case is resolved, Urbanski can determine whether to seek to have the county reimburse him for the legal fees.
Attorney A. Taylor Williams of the Administrative Office of Pennsylvania is representing Legg. The AOPC did not return a call seeking comment.