plaintiff Shipkowski, was employed for almost twenty-eight years.
I see a tremendous distinction in the factual settings. Here the plaintiff should be given an opportunity to demonstrate that his at-will employment was somehow modified by defendant's course of conduct during his long term of employment. Defendant's motion is DENIED as to Count Five.
Finally, in Count Six, plaintiff alleges a cause of action sounding in infliction of emotional distress. There are four elements in such a cause of action: (1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe. Bruffett v. Warner Communications, Inc., supra, at 692 F.2d 914; Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3rd Cir. 1979); Lekich v. International Business Machines Corp., 469 F. Supp. 485 (E.D. Pa. 1979); Restatement (Second) of Torts, Section 46 (1965).
The issue before the court is not, as defendant argues, whether plaintiff will ultimately prevail, but whether, he is entitled to offer evidence in Support of his claim. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). Where a complaint advanced colorable claims, Geisler v. Petrocelli, 616 F.2d 636 (2nd Cir. 1980), or claims where the likelihood of recovery is remote, United States v. City of Redwood City, 640 F.2d 963 (9th Cir. 1981), a motion to dismiss should be denied. Therefore, defendant's motion to dismiss Count Six is DENIED.
An appropriate Order follows.
AND NOW this 29th day of November, 1983, upon consideration of defendant's motion to dismiss counts three through six of plaintiff's complaint, for the reasons set forth in the foregoing Memorandum, it is ORDERED that:
1. Defendant's motion to dismiss as to Counts 3, 4 and 6 is DENIED.
2. Defendant's motion to dismiss as to Count 4 is GRANTED.
BY THE COURT:
JAMES McGIRR KELLY, J.