# Keifer Appeal > Supreme Court of Pennsylvania · July 1, 1968 · 430 Pa. 491 URL: https://www.frixlaw.com/law-library/cases/9706973 ## Case - **Full name:** Keifer Appeal - **Court:** Supreme Court of Pennsylvania - **Decided:** July 1, 1968 - **Citations:** 430 Pa. 491; 243 A.2d 336; 1968 Pa. LEXIS 735 - **Precedential status:** Published - **Opinion:** Concurrence by Roberts - **Judges:** Musmanno, Jones, Cohen, Eagen, O'Brien, Roberts, Bell - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706973 ## Opinion text Concurring Opinion by Mr. Justice Roberts : I am firmly convinced that the order of the court below is not appealable and thus this appeal should be quashed. Section 523 of the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P.S. §1-523 (Supp. 1967), allows an appeal from any “final order.” Section 517, 26 P.S. §1-517 (Supp. 1967), defines the term final order: “The court may confirm, modify, change the report or refer it back to the same or other viewers. A decree confirming, modifying or changing the report shall constitute a final order.” In its definition of final order the Code conspicuously omits one of the four alternatives open to the common pleas court, i.e., referring the matter back to the viewers. This omission indicates that an order referring a case back to the viewers is not a final and thus appealable order. Furthermore, §517 is merely a codification of prior legislation on this subject. The Act of May 16, 1891, P. L. 75, §6, as amended, 53 P.S. §1089 provided: “[T]he court shall have the power to confirm said *498 report [of the viewers], or to modify, change or otherwise correct the same, ... or refer the same back to the same or new viewers . . . .” The act of 1891, see 53 P.S. §1091, then declared: “Within thirty days after the confirmation, modification, changing or correcting of any report, any interested party may appeal from the said decree . . . .” Construing these provisions in Trasoff v. Philadelphia, 337 Pa. 223, 224 , 11 A. 2d 139 (1940), we held: “The Act of May 16, 1891 . . . only provides for an appeal from a decree of the Court of Common Pleas confirming, modifying, changing or correcting a report of a board of view. No appeal is allowed from a decree referring the case back to the board for further proceedings. That the omission was intentional on the part of the legislature is apparent from the fact the same section of the act gives the Court of Common Pleas the power on exceptions not only to confirm, modify, change or correct the report, but also to refer it 'back to the same or new viewers.’ Had the legislature intended to allow. an appeal from such an order, it would have expressly so provided.” I think it evident that the legislation construed in Trasoff and the relevant provisions of the Eminent Domain Code are in all material particulars identical. See generally, Snitzer, Pennsylvania Eminent Domain §517-3 (1965). Therefore, an order referring the case back to the viewers should not be appealable—and that is the order which was entered in this litigation. We have had two opportunities to interpret the language of section 517. In Hession Condemnation Case, 430 Pa. 273 , 242 A. 2d 432 (1968), we held that an order which confirmed the viewers’ action in all respects other than the award of a jury trial on the amount of damages 1 was appealable. Obviously, Hes- *499 sion is not controlling for it does not involve an order referring the litigation back to the board of view. However, Da car Chemical Products Co. v. Allegheny County Redevelopment Authority, 425 Pa. 343 , 228 A. 2d 778 (1967), does clearly hold that an order referring the matter back to the board is appealable. 2 I am convinced that Dacwr is both a departure from our previous cases and a distortion of the statutory mandate and would thus overrule that decision. Section 517 requires that the court, or a jury if such is demanded, determine the amount of damages. The lower court in *499 Session thus confirmed the report of the viewers to the extent that it was statutorily permitted to do so. I well realize that, although I dissented in Dacar, I did so on the merits of the issue raised and therefore impliedly joined that part of the majority opinion discussing the appealability of an order referring the matter back to the viewers. A decision once incorrectly made is not, in my view, an insuperable barrier to achieving the correct result. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706973. Public record. Not legal advice.