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decided: May 21, 1968.


Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1965, No. 1092, in re relocations 6900 State Road, property of Joseph John Hession and Sophie Hession.


George R. Specter, Assistant Attorney General, with him Robert W. Cunliffe, Assistant Attorney General, John R. Rezzolla, Deputy Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellant.

Barnie F. Winkelman, with him Emanuel A. Romm, for appellees.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice O'Brien.

Author: Roberts

[ 430 Pa. Page 274]

Appellees are owners of real estate located on the northwest corner of the intersection of Longshore Street

[ 430 Pa. Page 275]

    and State Road in the City of Philadelphia. Their parcel of land contains a building used partially for residences and partially for the operation of a combined tavern-restaurant. That portion of the real estate not occupied by the structure is used by the patrons of the business as a parking lot. In 1961 the Commonwealth vacated State Road south of Longshore as part of its construction of the Delaware River Expressway. This vacation converted the intersection of Longshore and State from a full cross-intersection to a "T" intersection with State Road now ending at Longshore. The new State Road, as now located, is some 300 feet east of the old State Road and traverses an elevated overpass above Longshore Street. Appellees' access to Longshore Street and that portion of old State Road north of Longshore has not been in any way impaired by the Commonwealth's action; new State Road can be reached by traveling a short distance along Longshore. None of their property has been taken.

Pursuant to the Eminent Domain Code, Act of June 22, 1964, P. L. 84, § 101 et seq., 26 P.S. § 1-101 et seq. (Supp. 1967), appellees petitioned for the appointment of viewers to assess damages allegedly sustained as a result of the vacation of State Road south of Longshore and the construction of the new State Road. The board of viewers made an award of $20,000. In accordance with § 516 of the Eminent Domain Code, 26 P.S. § 1-516 (Supp. 1967), the Commonwealth appealed the report of the viewers and, under subsection (4) of that section, objected specifically to the awarding of any damages contending that as a matter of law no compensable damages had been proven. The common pleas court found that appellees had sustained compensable damages and awarded a jury trial to determine the amount. From that order the Commonwealth has appealed.

[ 430 Pa. Page 276]


The opinion of the court below discusses at some length the appealability of its order. Although no motion to quash has been filed, this question merits our attention. Section 523 of the Eminent Domain Code, 26 P.S. § 1-523 (Supp. 1967), provides: "Either party may appeal to the Supreme or Superior Court as the case may be, from any final order or judgment of the court of common pleas. . . ." The term "final order" is defined in § 517, 26 P.S. § 1-517 (Supp. 1967): "All objections, other than to the amount of the award, raised by the appeal shall be determined by the court preliminarily. 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." Since § 517 further requires that the trial court must make its own determination (unless a jury trial has been demanded) of the amount of damages, the action of the court below in confirming the viewers' decision as to compensability was the most it could do. If the word "confirm" in § 517 is to be given content, then the action of the court below was a confirmation of the viewers' action. Section 517 tells us that such a confirmation is a final order and § 523 allows appeals from all final orders.

In Dacar Chemical Products Company v. Allegheny County Redevelopment Authority, 425 Pa. 343, 228 A.2d 778 (1967) we held that a lower court order which remanded the matter to the viewers was appealable under § 523. It would thus seem mandated that an order which leaves open only the issue of the amount of damages is also appealable. We well realize that the Legislature has created a situation where what ...

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