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May 27, 1966

In the Matter of the Application of Lawrence W. Goldberg for a Writ of Habeas Corpus. Lawrence W. GOLDBERG
Edward J. HENDRICK, Superintendent, Philadelphia County Prisons

The opinion of the court was delivered by: BODY

 The matter presently before the Court, respondent's motion to dismiss the petition of Lawrence W. Goldberg for a writ of habeas corpus, arises from an unusual set of circumstances. The principal substantive issue to be decided is whether the Pennsylvania Trespass Act, 18 P.S. § 4954, has been pre-empted by a 1956 amendment to the Atomic Energy Act, 42 U.S.C.A. § 2278a, by virtue of the Supremacy Clause of the United States Constitution, U.S.C.A.Const. Art. VI, cl. 2.

 Briefly stated, the relevant facts are as follows: In 1961 the Philadelphia Electric Company, a Pennsylvania corporation, was granted a license by the Atomic Energy Commission for the construction of an atomic power plant in Peach Bottom Township, York County, Pennsylvania. The Philadelphia Electric Company, as sole licensee, then executed separate and independent contracts with some fifty-two other utilities whereby these other utilities helped to finance the project in return for information about the development of atomic energy. This cooperative group of companies is known as High Temperature Reactor Development Associaties, Inc.

 Construction began during the spring of 1962 on the 40,000 electrical kilowatt high gas-cooled reactor which will serve in proving the practicability of a promising concept for such reactors. The agreement with the AEC establishes that the Peach Bottom plant will be owned and operated by Philadelphia Electric Company. The AEC is to provide research and development assistance in establishing technology for the reactor and waived full use charges for the first five years of operation.

 The alleged trespass occurred on December 19, 1962 on the Peach Bottom site at an area which was completely fenced in with guarded gates and prominently posted with printed notices that the land was private property and warning all persons from trespassing thereon under the penalties provided by the Act of 1943, May 21, P.L. 306, § 1 (18 P.S. § 4954). It is important to emphasize that this land was owned by the Philadelphia Electric Company.

 Relator, without permission, entered the main gate at the construction site where building operations were underway in connection with the proposed atomic power plant. He stated that he entered the property for the purpose of looking at the construction of the power plant and taking pictures thereof. He refused to leave when requested to do so by an official of the Bechtel Corporation, a firm which apparently had contracts with Philadelphia Electric Company and the other group of companies. He remained inside the posted premises until arrested for violating Pennsylvania law by a Deputy Constable from York, Pennsylvania. There were no signs or regulations posted under the Atomic Energy Act, specifically 42 U.S.C.A. § 2278a.

 On January 3, 1963, after a hearing before a magistrate, relator was convicted under the Pennsylvania statute and sentenced to pay a fine of five dollars ($5.00) and costs. He appealed his conviction and sentence and following a hearing de novo on July 24, 1963, The Honorable James E. Buckingham, Judge of the Court of Quarter Sessions of York County, found him guilty and likewise imposed a fine of five dollars ($5.00) and the costs of prosecution. Relator then appealed to the Supreme Court of Pennsylvania, Middle District, as of May Term 1964, No. 14. The Supreme Court affirmed his conviction, stating in a Per Curiam opinion dated July 1, 1964: "We find no merit in any of his contentions". Commonwealth v. Goldberg, 415 Pa. 574, 575, 201 A.2d 603 (1964).

 Following the decision by the Pennsylvania Supreme Court, the Clerk of Courts of York County mailed notices to relator on May 14, 1965 and July 2, 1965 that his fine and costs were due to be paid. He failed to pay and a writ of attachment was issued by Judge Buckingham on July 23, 1965. On or about July 31, 1965 relator was arrested upon a contempt citation at his home in Philadelphia, Pennsylvania. He was placed in custody by the authorities at the Philadelphia Detention Center which is under the supervision and authority of the respondent herein, Edward J. Hendrick. On August 2, 1965 relator petitioned this Court for the instant writ of habeas corpus and secured his release on five hundred dollars ($500.00) bail with surety pursuant to my Order of August 2, 1965 pending hearing and final disposition thereon. A hearing was held in this Court on August 11, 1965 at which time the factual allegations were presented and argument heard on the legal issues involved. Subsequent to that hearing and after several continuances, briefs were filed and arguments were heard on respondent's motion to dismiss the writ.

 Before reaching the merits of the case, it is necessary to discuss two jurisdictional questions.



 Relator did not apply for a writ of habeas corpus in the state courts following the affirmance of his conviction by the Pennsylvania Supreme Court. It is true that a federal district court will ordinarily refuse to entertain a petition under such circumstances because of the doctrine of comity. United States ex rel. Drew v. Myers, 327 F.2d 174 (3rd Cir. 1964)

 However, the requirement in a federal habeas corpus proceeding that all state remedies must first be exhausted is satisfied when the petitioner has received an adverse adjudication as to his federal rights in the highest court of the state. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Irvin v. Dowd, 359 U.S. 394, 79 S. Ct. 825, 3 L. Ed. 2d 900 (1959). In the present case, I construe the language of the Pennsylvania Supreme Court to the effect that they found no merit to any of relator's contentions as an adverse adjudication of all his allegations, including any federal rights.

 Furthermore, my late Brother, Allan K. Grim, recognized that in certain cases no useful purpose would be served by requiring a petitioner to burden the state courts with more petitions, even though he has not technically exhausted all available state remedies. United States ex rel. Gary v. Hendrick, 238 F. Supp. 757 (E.D.Pa.1965) Judge Grim also cited In re Thompson's Petition, 301 F.2d 659, 660 (3rd Cir. 1962) for the proposition "that it is never an 'indignity to ...

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