SEVAST v. KAKOURAS, 580 Pa. 352 (2004)

861 A.2d 257

Supreme Court of Pennsylvania, Middle District.
October 6, 2004.

Petition No. 265 MAL 2004 for Allowance of Appeal from Order of the Superior Court.

ORDER
PER CURIAM.

AND NOW, this 6th day of October, 2004, the Petition for Allowance of Appeal is hereby granted, limited to the following issues:

Whether the Superior Court’s decision on an issue of first impression has the disastrous consequence of exposing estate beneficiaries to indefinite liability as a result of its conclusion that the statute of limitations on a claim under section 374 of the Restatement (Second) of Contracts begins to run “only when the value of performance exceeds the loss caused by the breach”?
Whether the Superior Court radically departed from the long-standing rule that summary judgment motions should be granted only in clear cases when it assumed material

Page 353

facts not of record, and based on those assumptions, granted restitution to Respondent in the amount of $121,178.15? Whether the Superior Court departed from its own precedent in Brown v. Candelora, 708 A.2d 104 (Pa.Super. 1998), by concluding that the amount of restitution was subject to garnishment when it failed to consider the fair rental value of the judgment debtor’s decade-long possession of a valuable commercial property?

We also request the parties to brief the following issue:

Whether Pennsylvania should permit a breaching party to bring a restitution claim pursuant to section 374 of the Second Restatement of Contracts?