united states district court - Eastern District of Pennsylvania

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issued from February 2003 through July 2003. 71 QVC represents that after September 8, 2003, when Radko informed QVC that he would not be appearing on its programming, it exercised its right to return $446,285 worth of ornaments, but it was too late to return $884,684 worth of ornaments. 72 This claim also seeks to modify clear and unambiguous terms of QVC’s purchase orders. QVC presents no evidence of a written modification of the purchase orders that would condition QVC’s return rights on alleged oral promises by Starad. Accordingly, this claim is barred by the parol evidence rule. 73 Summary judgment for Starad is appropriate on this part of QVC’s fraud claim as well. 3. Gist of the Action Starad argues that under the Agreement Radko was contractually obligated to promote apparel, if requested to do so, and any claim that QVC purchased Starad sweaters in reliance on Radko’s duty to promote is barred by Pennsylvania’s “gist of the action” rule because it merely 71 While it is not completely clear from QVC’s pleadings and affidavits as to when it purchased this merchandise, the “additional purchase orders” for $884,684 seem to be the same “additional purchase orders” referenced in QVC’s Answer and Counterclaims, even though the amount claimed is slightly different (“no less than $778,958.00.”). 72 Campbell Second Decl. at 12. 73 Additionally, QVC fails to provide any evidence as to the timing of its $884,684 ornaments purchase, or any explanation for why it could not exercise its return rights after September 8, 2003, relying on a conclusory statement by its employee that “if QVC had known at an earlier time that Radko did not intend to appear on QVC’s programming to promote the Holiday Ornaments, QVC would have exercised its right to return additional quantities of the $884,864. . .” Campbell Second Decl. at 12. QVC also curiously states that QVC believed that Radko would appear on its programming because “his statements and conduct indicated that he understood QVC expected him to appear,” yet represents that throughout the summer of 2003, when “QVC consistently tried to make arrangements for Radko to appear on QVC’s programming in September to promote the Holiday Ornaments,” “neither Radko nor anyone else at Starad returned [QVC’s] calls.” Id. at 7, 9. It is black letter law that in opposing summary judgment, the non-moving party may not rely on such mere allegations but “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). -28
duplicates QVC’s contract claim. 74 QVC concedes as much but argues that it should be allowed to assert the fraud claim in the alternative to its breach of contract claim, in light of Starad’s argument that the Agreement is void and non-binding. This argument is not persuasive since, as pointed out by Starad, if the Agreement is void, so are any promises contained in it, including any promises by Radko to promote the sweaters, and QVC’s fraud claim would fail. Since QVC’s fraud claim for purchase of the sweaters duplicates its breach of contract claim, it is barred under the gist of action rule, and summary judgment for Starad is appropriate on this issue. An appropriate Order follows. 74 See Montgomery County. v. Microvote Corp., Civ. A. No. 97-6331, 2000 WL 134708, at *3-4 (E.D. Pa. Feb. 3, 2000) (under Pennsylvania law, when the tort involves actions arising from a contractual relationship, the plaintiff is limited to an action under the contract). -29
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: voice and performance” to promote
Page 5 and 6: Starad alleges that ornaments under
Page 7 and 8: The Court must first determine whet
Page 9 and 10: design. 13 Even assuming that the p
Page 11 and 12: usiness and marketing reasons. Sinc
Page 13 and 14: is to restrain trade or control pri
Page 15 and 16: years via purchase orders that cont
Page 17 and 18: arguing that it is a claim of fraud
Page 19 and 20: 41 1726 Cherry St., 653 A.2d at 664
Page 21 and 22: Starad attempts to avoid the parol
Page 23 and 24: unrepresented by counsel during neg
Page 25 and 26: disclaim any oral modification. 60
Page 27: ight to return the ornaments to Sta
Page 31: cause of action for fraud. 3. Stara

united states district court - Eastern District of Pennsylvania

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