concurring specially:
In lieu of an opinion, I would have disposed of this appeal by a motion, ex mero motu, to dismiss. The case simply is not yet before us because no appeal has been perfected. In my view the record demands, on two grounds, immediate vacation of the attempted appeal from the District Court’s order.
First: The order is plainly not appealable because it is not a final order as required by 28 U.S.C. § 1291 (as amended April 2, 1982) and has not been made final under the provisions of F.R.Civ.P. 54(b). Indeed, the order does not purport to dispose of any distinct claim for relief. It leaves unadjudicated many substantial issues that are inextricably entwined with the matter it purports to resolve.
Second: It is but a “piecemeal” appeal, obviously impermissible and one to be va*134cated. Curtiss-Wright v. General Electric Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (1980).
Conclusion: Further observation by this Court of the case in its present stature is unwarranted. I would return it to the District Court with instructions to resume and complete the trial. On remand, the record would consist of such evidence as already has been received and such rulings as have been made relating to the pleaded claim and counterclaims. Additional evidence and further rulings will follow from this point on, in the ordinary course, as well as arguments of counsel, until final adjudication of the litigation by the trial court.