Opinion
No. CV 01-0076151
May 23, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#121)
Introduction
In this action the Plaintiff, Conrad McIntire, Jr., claims that he was employed as recreation director for the town of Somers and that the Defendant, Ann Piscottano made certain statements about him to the effect that he was working at a second job during times that he was claiming to be working for Somers. The Plaintiff claims that "[t]he Defendant, for personal and/or political reasons engaged in an intentional campaign to destroy the Plaintiff's reputation, and to arise doubt, suspicion and ill will towards the Plaintiff's conduct in his position as Somers Recreation Director with the intent to have the Plaintiff removed, in whole or in part, from his position as the Somers Recreation Director." The Plaintiff's four-count complaint alleges causes of action in defamation, false light invasion of privacy, negligent infliction of emotional distress, and intentional infliction of emotional distress.
The Defendant has moved for summary judgment, claiming as to the first count that since the Plaintiff was a public figure, the Defendant's alleged defamatory statements are privileged. As to the second count, the Defendant claims that the facts demonstrate that her statements were not made with reckless disregard and since the Plaintiff was a public figure her statements were permissible. As to the third and fourth counts, the Defendant claims that her alleged defamatory statements did not rise to the level of outrageousness associated with a negligent or intentional infliction of emotional distress.
Discussion
The standards for granting summary judgment are well settled. "Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review." (Citation omitted; internal quotation marks omitted.) Faigel v. Fairfield University, 75 Conn.App. 37, 39-40 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore entitled to judgment as a matter of law . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Vaillancourt v. Latifi, 81 Conn.App. 541, 545 (2004). "A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." (Emphasis in original.) Id.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380 [now § 17-45]." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06 (2004).
As to the first court alleging defamation, the Defendant claims that since the Plaintiff was a public figure at the time of the alleged defamatory statements the Defendant's statements were privileged. "In an action for defamation, a public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves by clear and convincing evidence that the falsehood was published with `actual malice.' New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Brown v. K.N.D. Corporation, 205 Conn. 8, 10, 529 A.2d 1292 (1987), Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 699, 98 L.Ed.2d 651 (1988). The state of mind that constitutes actual malice has been defined as `with knowledge that it was false or with reckless disregard of whether it was false or not.' Brown v. K.N.D. Corporation, supra. Although the United States Supreme Court has not definitively resolved the question of `how far down into the lower ranks of government employees the "public official" designation would extend'; New York Times Co. v. Sullivan, supra, 283 n. 23; it is clear that not all public employees are included within that category. Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). In determining whether a particular individual holds the status of a public official, courts have remarked on various significant considerations. The United States Supreme Court indicated that the underlying purpose of limiting an individual's ability to protect his reputation was to allow citizens to voice their opinions more freely on matters of public concern. New York Times Co. v. Sullivan, supra, 270. `[D]ebate on public issues should be uninhibited, robust and wide-open, and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' Id. `[T]he "public official" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.' Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Moriarty v. Lippe, 162 Conn. 371, 378, 294 A.2d 326 (1972). Additionally, it is important to consider whether `a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and importance of all government employees . . .' Rosenblatt v. Baer, supra, 86; Moriarty v. Lippe, supra. Further, it has been postulated that public figures require less protection from defamation because they tend to enjoy greater access to the media for purposes of rebutting any defamatory publication. Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Taking into account these considerations, we conclude that a public school teacher is a public official for defamation purposes. Robust and wide-open debate concerning the conduct of the teachers in the schools of this state is a matter of great public importance. In Moriarty v. Lippe, supra, we indicated that a police patrolman is a public official. There we noted that `a patrolman's office, if abused, has great potential for social harm and thus invites independent interest in the qualifications and performance of the person who holds the position.' Id., 378. We also stated that the patrolman `has, or appears to the public to have, substantial responsibility for or control over the conduct of government affairs, at least where law enforcement and police functions are concerned . . .' Id. Similarly, teachers' positions, if abused, potentially might cause serious psychological or physical injury to school aged children. Unquestionably, members of society are profoundly interested in the qualifications and performance of the teachers who are responsible for educating and caring for the children in their classrooms. Further, teachers exercise almost unlimited responsibility for the daily implementation of the governmental interest in educating young people. In the classroom, teachers are not mere functionaries. Rather, they conceive and apply both policy and procedure. As a result of that significant public interest, it is also likely that the media would not only provide a teacher about whom allegations have been made with an opportunity to respond, but that the media would encourage comment by the teacher. Therefore, we conclude that the trial court properly instructed the jury that the plaintiff school teacher was a public official for defamation purposes." Kelley v. Bonney, 221 Conn. 549, 580-3 (1992).
The Plaintiff here, at the time of the alleged statements, was the head of the recreation department of the Town of Somers. The record reveals that the activities of the Recreation Director are directed by a seven-member Recreation Commission. The Chairman of the Recreation Commission has described the role of the recreation director as primarily secretarial although the Plaintiff has described it as managerial. The Defendant has submitted information that the Plaintiff is responsible for creating programs and providing recreational services to the town. He holds himself out in the literature promoting those programs as the spokesperson for the Somers Park Recreation Department. Other than these generalized statements, no substantial evidence has been submitted as to the Plaintiff's particular job duties, his supervisory responsibilities, if any (although there is some evidence he responded to citizen complaints about recreation programs and interacted with department employees), the extent of his specific authority, tenure, what specific interests and policies of the Town he implemented, or his relative position in the hierarchy of town government. The evidence before the court does not establish that the Plaintiff had any substantial responsibility for or control over the conduct of any of the governmental affairs of the town of Somers or that his position in the town government had such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and importance of all government employees.
The Defendant cites Rosenblatt v. Baer, 383 U.S. 75 (1966), in support of her position that the Plaintiff is a public official, but there the respondent was the director of a ski resort and he himself characterized his role as the one responsible for its operation. There is no evidence here that the Plaintiff held a similar level of responsibility. In Martin v. Griffin, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-99-0586133S (June 13, 2000), Judge Lavine stated: "A `public figure' has been defined as someone who has `assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.' Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). Cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 615 (1955) (speech making and the broadcasting of political speeches are occasions of qualified privilege); Pauling v. News Syndicate Co, Inc., 335 F.2d 659, 671 (2d Cir. 1964), cert. denied, 379 U.S. 968 (1965). A review of Connecticut cases indicates that a wide range of people have been determined to be `public officials' or `public figures' for First Amendment purposes. See, e.g., Woodcock v. Journal Publishing Co., 230 Conn. 525 (1994), cert. denied, 513 U.S. 1149 (1995) (member of planning and zoning commission); Kelley v. Bonney, supra, 221 Conn. 549 (public school teacher); Brown v. K.N.D. Corp., 205 Conn. 8 (1987) (assistant city manager); Holbrook v. Casazza, supra, CT Page 9939 204 Conn. 336 (town tax assessor); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313 (1984) (former state senator); Dacey v. Connecticut Bar Assn., 170 Conn. 520 (1976) (author/lecturer/consultant); Moriarty v. Lippe, 162 Conn. 371 (1972) (police patrolman); Abdelsayed v. Narumanchi, 39 Conn.App. 778 (1995), cert. denied, 237 Conn. 915 (1996) (professor at state university); Peters v. Carra, 10 Conn.App. 410 (1987) (police officer); Perruccio v. Arseneault, 7 Conn.App. 389 (1986) (labor union president). The first question that must be answered, therefore, is whether the plaintiff in this case should be considered to be a `public figure' or `public official' and thus subjected to the heightened `actual malice' requirements of New York Times Co. v. Sullivan, supra, 376 U.S. 279. This question must not be approached mechanistically, but rather, as the United States Supreme Court counsels in Gertz v. Robert Welch, Inc., supra, 418 U.S. 352, `by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation.'"In Martin, Judge Lavine concluded that: "Analysis of the facts and law in this case leads to the conclusion that plaintiff — a former police officer and head of the police union — must be considered both a `public official' and a `public figure,' for purposes of analysis of his claims in the first two counts, for two reasons: the first is the clearly public nature of his position itself; the second relates to the plaintiff's thrusting himself into the most public of disputes — an election campaign, although he himself was not the candidate." The court also noted that the Plaintiff was a deputy sheriff during the relevant time period. Judge Lavine stated: "The public generally regards the acts of a deputy sheriff as the acts of the sheriff himself. The sheriff's position in government vests in him and his deputies' `substantial responsibility for or control over the conduct of governmental affairs.' This is certainly title where law enforcement and police functions are concerned. Additionally, though the office of deputy sheriff may be a comparatively low ranking one in the hierarchy of government nevertheless, if the deputy's office be abused, it has great potential for social harm and thus invites independent interest in the qualifications and performance of the person or persons who hold the position."
Based on the evidence before it, the court cannot conclude that the Plaintiff occupied a position similar to those where the courts have found their occupants to be public officials. Among those cited by the Defendant and the court in Martin, are a tax assessor, an assistant town manager, a college professor, a former state senator and a labor union president. In fact, in many of the cases cited, there was no dispute that the plaintiff was a public official for purposes of a defamation claim. Here, that issue is not conceded and the court must examine the Defendant's claim that the Plaintiff is a public official pursuant to the purpose and intent of the privilege. That examination does not reveal that the Plaintiff's position is one which, unlike that of a police officer, teacher or deputy sheriff, has substantial authority over or control of the conduct of an important governmental function and whose authority, if abused, has the potential to cause great social harm.
The controversy regarding his work hours does not transform the Plaintiff into such a public official. As the Court in Rosenblatt v. Baer, 383 U.S. 75, 86 n. 13 (1966), noted: "It is suggested that this test might apply to a night watchman accused of stealing state secrets. But a conclusion that the New York Times malice standards apply could not be reached merely because a statement defamatory of some person in government employ catches the public's interest; that conclusion would virtually disregard society's interest in protecting reputation. The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy."
Consequently, the court cannot find, on the record before it, that the undisputed facts established that the Plaintiff was a public official at the time of the alleged defamatory statements, and that the Dependant's alleged statements were privileged. The Plaintiff need prove only the elements of a defamation claim and need not prove, by clear and convincing evidence that the defamatory statement was made with actual malice. "`A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement.' (Citations omitted, internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004)." Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 848 (2004). The Defendant does not take issue as to whether the Plaintiff has stated a prima facie case of defamation but only argues that the alleged defamatory statements are privileged. "[If] the plaintiff is a public figure, she would need to prove actual malice; Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 534-36, 368 A.2d 125 (1976); Moriarty v. Lippe, 162 Conn. 371, 377-78, 294 A.2d 326 (1972); but if she is a private individual, she need only prove, by a preponderance of the evidence, negligence in the failure to investigate the facts properly prior to publication. Corbett v. Register Publishing Co., 33 Conn.Sup. 4, 10, 356 A.2d 472 (1975); 3 Restatement (Second), Torts 580B, pp. 221-22." Miles v. Perry, 11 Conn.App. 584, 588-89 (1987).
Therefore the Defendant's motion for summary judgment as to the first count is denied.
The Defendant claims, as to the second count, that the Plaintiff cannot sustain a cause of action for false light "To establish invasion of privacy by false light, the plaintiffs [are] required to show that (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. 3 Restatement (Second), Torts § 652E; see Goodrich v. Waterbury Republican-American, Inc., [ 188 Conn. 107, 127, 448 A.2d 1317 (1982)]; Jonap v. Silver, 1 Conn.App. 550, 557-58, 474 A.2d 800 (1984)." (Internal quotation marks omitted). Honan v. Dimyan, 52 Conn.App. 123, 132-23 (1999). "This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is. 3 Restatement (Second), Torts, 652E, comment b. The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true; id.; and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position. Id., comment c. Goodrich v. Waterbury Republican-American, Inc., supra, 131" (internal quotation marks omitted); Jonap v. Silver, 1 Conn.App. 550,558(1984). "`The standard governing the tort of false light invasion of privacy is similar to the standard governing the tort of defamation concerning a public official or public figure: that the publisher of the false statement knew that the statement was false or acted in reckless disregard of the falsity of the statement.' Herring v. Radding Signs, Superior Court, judicial district of New Haven, Docket No. CV 99 0427523 (February 9, 2000, Alander, J.). A finding of reckless disregard requires `sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.' (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., 230 Conn. 525, 546, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995)." Rice v. Meriden Housing Authority et al., Superior Court, Judicial District of New Haven at New Haven, Docket No. CV 03-0479556 (Skolnick, J., March 31, 2004).
The Defendant claims that the Plaintiff's false light claim fails for two reasons: he fails to state an adequate cause of action for false light and even if he does, as a public figure he has less an expectation of privacy thereby defeating his claim as a matter of law. Since the court has not found the Plaintiff to be a public figure, the court will address only the Defendant's first reason.
In the Plaintiff's second count he makes the allegations necessary to support a cause of action for invasion of privacy by false light. Yet the Defendant claims that she "could not entertain" serious doubts as to the truth of her alleged defamatory statements considering this issue regarding plaintiff's work hours had been the subject of discussion in the Town of Somers prior to her inquires." Memorandum in Support of Motion for Summary Judgment, p. 32. The evidence in the record reveals that there have been time records prepared by the Plaintiff which conflict in that they show him working for the Town at the same time he was giving tennis lessons. Yet the Plaintiff claims that the evidence establishes that "the Defendant knew that Plaintiff's outside activities were both sanctioned and appropriate in light of the flex time schedule he was allowed to work under." Plaintiff's Memorandum Opposing Summary Judgment, p. 22. The evidence submitted indeed indicates that certain town officials had previously investigated allegations regarding the Plaintiff's working outside of town during the normal workday and found those allegations wanting. The court, in determining a motion for summary judgment cannot resolve disputed factual issues. Here, determination of the issue of whether the Defendant acted in reckless disregard of the truth of the alleged defamatory statements requires a resolution of disputed issues of fact based on conflicting evidence. The court cannot effectuate such a result on a motion for summary judgment. Employers Reinsurance Corporation v. Muro, 86 Conn.App. 551 (2004). Therefore the motion for summary judgment is denied as to the second count.
As to the third and fourth counts, the Defendant claims that the Plaintiff's claims for negligent infliction of emotional distress and intentional infliction of emotional distress fail as a matter of law. "In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Appleton v. Board of Education, 254 Conn. 205, 210 (2000). "`Liability for intentional inflation of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Petyan v. Ellis, supra, 254 n. 5, quoting W. Prosser W. Keeton, Torts (5th Ed.) § 12, p. 60. Thus, [i]t is the intent to cause injury that is the gravamen of the tort. Hustler Magazine v. Falwell, 485 U.S. 46, 53, 108 S.Ct. 876, 99 L.ED.2d 41 (1988) . . .' (Internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991)." (Footnote omitted.) Bell v. Board Of Education, 55 Conn.App. 400, 409-10 (1999). "`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). Conduct on the part of the defendant That is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress. Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 19, 597 A.2d 846 (1991).' (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 210-11." Carrol v. Allstate Ins. Co., 262 Conn. 433, 443 (2003). The court in Carrol also discussed the cause of action of negligent infliction of emotional distress: "In Montieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), this court for the first time recognized a cause of action for negligent infliction of emotional distress. We continually have held that `in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm.' (Internal quotation marks omitted.) Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001). In Barrett v. Danbury Hospital, 232 Conn. 242, 261-62, 654 A.2d 748 (1995), we further reasoned: `This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.'" "The elements of negligent and intentional infliction of emotional distress differ as to the state of mind of the actor and not to the conduct claimed to be extreme and outrageous." Muniz v. Kravis, 59 Conn.App. 704, 709 (2000).
The Plaintiff's emotional distress claims are based on the same statements and conduct that he claims were defamatory, that is, that "he was working for the town during hours that he was actually coaching tennis elsewhere," "was submitting time cards to his employer, the town of Somers, which indicated that he was working for the town of Somers when, in fact, he was working at another job," "the Plaintiff was working at a second job during the times that he was working as the Somers Recreation Director," and that the "Defendant for personal and/or political reasons, engaged in an intentional campaign to destroy the Plaintiff's reputation, and arise doubt, suspicion and ill-will towards the Plaintiff's conduct in his position as Somers Recreation Director with the intent to have the Plaintiff removed, in whole or in part; from his position as the Somers Recreation Director." Complaint, Paragraphs 4-8. A review of these allegations, as well as the evidence submitted in support and in opposition to the motion for summary judgment, does not support a claim that the alleged conduct of the Defendant was extreme and outrageous. "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Bell v. Board of Education, 55 Conn.App. 400, 409-10, 739 A.2d 321 (1999). Only here reasonable minds disagree does it become an issue for the jury. Id., 410. Therefore, in assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint, counterclaim or cross complaint set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress. Cf. Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000)." Hartmann v. Gulf View Estates Home Owners Assn., 88 Conn.App. 290, 295 (2005).
Therefore summary judgment is granted as to the third and fourth counts of the complaint.
Conclusion
The Motion for Summary Judgment is denied as to the first and second counts of the complaint and granted as to the third and fourth counts.
Jane S. Scholl, J.