united states district court - Eastern District of Pennsylvania

pursuant to the Agreement. and on Starad’s representations that Radko would so appear, QVC
ordered $46,311.00 worth of sweaters and at least $1.5 million worth of ornaments. QVC could not
sell this merchandise because Radko did not appear on-air as required by the Agreement. Thus,
according to QVC, Starad breached the Agreement in August of 2003 when it contracted with HSN
to market the ornaments, and in September of 2003, when it notified QVC that Radko would not
appear on QVC to promote any products.
II. STARAD’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS
DECLARATORY CLAIMS
Under Fed. R. Civ. P. 56(c), summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” 1 In deciding a motion for summary judgment, all facts must be viewed
and all reasonable inferences must be drawn in favor of the non-moving party. 2
Starad argues that the Agreement is illusory and unenforceable because it leaves
performance to the discretion of QVC, lacks consideration or, alternatively, that it was validly
terminated by Starad. Starad also argues that the non-compete clause is unenforceable as a matter
of law. 3
A. Validity of the Agreement
1 Celotex Corp. v. Catreet, 477 U.S. 317, 322-32 (1986).
2 See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
3 The Agreement provides, and the parties agree, that Pennsylvania law governs.
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