Davis v. Town of South Bethany Beach

• Court: Superior Court of Delaware
• Decided: October 11, 2022
• Docket: S20C-06-018 CAK
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ALFRED DAVIS, ) ) Plaintiff, ) v. ) ) C.A. No. S20C-06-018 CAK TOWN OF SOUTH BETHANY BEACH, ) a Municipal Corporation ) of the State of Delaware, ) ) Defendant. )

Submitted: September 26, 2022 Decided: October 11, 2022

Upon Defendant’s Motion for Summary Judgment pursuant to Superior Court Rule 56(b)

DENIED IN PART AND GRANTED IN PART

MEMORANDUM OPINION AND ORDER

Eric G. Mooney, Esquire, Eric G. Mooney, P.A., 13 South Front Street, Georgetown, DE 19947, Attorney for Plaintiff.

Tasha Marie Stevens-Gueh, Esquire, Andrew & Stevens-Gueh, LLC, 115 South Bedford Street, Georgetown, DE 19947, Attorney for Plaintiff.

Stephani J. Ballard, Esquire, Law Offices of Stephani J. Ballard, LLC, 100 Rockland Road, P.O. Box 614, Montchanin, DE 19710, Attorney for Defendant.

KARSNITZ, R.J.

1 I. INTRODUCTION

On the paper record before me, and absent pretrial discovery, the Town of

South Bethany Beach, Delaware, a municipal corporation organized by Charter

under the laws of the State of Delaware (“Defendant”) asks me to grant it judgment

as a matter of law1 as to the following two claims by Alfred “Lee” Davis (“Plaintiff”)

against Defendant: (1) a promissory estoppel claim, and (2) a claim for violation of

an implied covenant of good faith and fair dealing. For the reasons discussed below,

I deny Defendant’s request as to the promissory estoppel claim, and I grant

Defendant’s request as to the good faith and fair dealing claim.

II. FACTS

Plaintiff was hired by Defendant as a police officer on or about August 6,

1991. Plaintiff retired in good standing on or about March 16, 2019. Plaintiff was 56

years old at the time of his retirement, and he had accrued 27 years of service with

Defendant.

Defendant first adopted a personnel policy manual (the “Manual”) on or about

January 14, 1995, which addressed separation from employment but contained no

provision regarding retirement. The preface to the 1995 Manual stated that its

contents were presented “as a matter of information only,” were “not conditions of

1 Pursuant to Super. Ct. Civ. R. 56(b): “A party against whom a claim, counterclaim or crossclaim is asserted or a declaratory judgment is sought may, at any time, move, with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.” 2 employment,” and further stated:

The Town reserves the right to modify, revoke, suspend, terminate, or change any or all such policies or procedures, in whole or in part, at any time, with or without notice. The language used in this manual is not intended to create, nor is it to be construed, to constitute a contract between the Town and one or all of its employees.2

In April, 2001, the Town revised and amended the Manual to add a retirement

provision to the separation section, which stated that employees who retired with 15

or more years of continuous service would receive bonuses in various amounts.3 The

preface to the 2001 revised Manual stated that “[t]he policies outlined in this book should

be regarded as guidelines”4 and

The Town of South Bethany, by the action of Town Council, retains the right to modify, revoke, suspend, terminate, or change any or all such policies or procedures, in whole or in part, at any time, with or without notice. The policies contained in this book are not intended to create a contract and/or a warranty of benefits between the Town and one or all of its employees.5

The 2001 revised Manual further provided:

The Town Council reserves the right to amend, supplement, or otherwise revise the provisions of the manual, in whole or in part, at any time. These actions shall supersede and replace any prior policy.6

In January, 2014, Defendant again revised the Manual, eliminating the

retirement bonus for employees hired on or after October 24, 2013 and, for existing

2 A-10. In the attachments to the respective pleadings, Plaintiff’s documents are designated as “Exhibit A, B, C” etc. and Defendant’s documents are designated as “Exhibit 1, 2, 3” etc. 3 At the time of the 2001 revision, Plaintiff had accrued 9 years of service with Defendant. 4 A-105. 5 Id. 6 A-109. 3 employees, maintained the amount of the bonuses available, but established age and

time of service criteria to be deemed “retired:”

For purposes of this section, an employee shall be deemed retired who, at the time of his/her separation from the Town, (A) has attained the age of 60 and has at least 15 years of continuous service with the Town, or (B) has 30 years of continuous service with the Town.7

Once again, the revised 2014 Manual stated that “[t]he policies outlined in this book

should be regarded as guidelines,”8 did not create a contract and/or a warranty of

benefits between Defendant and any employee(s),9 and “shall supersede and replace

any prior policy.” 10 Defendant emailed a copy of the revised 2014 Manual to each

employee, including Plaintiff, on January 31, 2014.

Plaintiff voluntarily retired in good standing effective March 16, 2019, at which time

he was 56 years old and had accrued 27 years of service. This did not meet the age

and time of service criteria for the retirement bonus under the terms of the revised 2914

Manual. Plaintiff demanded payment of a retirement bonus and Defendant advised

him that he was ineligible.

III. PROCEDURAL BACKGROUND

Plaintiff initially filed his Complaint on June 22, 2020, alleging entitlement

to his retirement bonus from Defendant. Prior to any responsive pleading from

7 A-92, 245. At the time of the 2014 Manual revisions, Plaintiff was 51 years old and had accrued 22 years of service with Defendant. 8 A-185. 9 Id. 10 A-189. 4 Defendant, on July 28, 2020, Plaintiff filed a second Complaint. The second

Complaint was not properly served on Defendant, so Defendant, on December 31,

2020, filed a Motion to Dismiss. On February 5, 2021, I denied Defendant’s Motion

to Dismiss, but ordered Plaintiff to file another Amended Complaint which clearly

articulated his claims for relief. O n February 16, 2021, Plaintiff filed his Amended

Complaint. Defendant filed its Answer on March 8, 2021.

A scheduling order was issued on June 3, 2021. Defendant moved for a stay

of discovery pending resolution of its Motion for Judgment on the Pleadings.11 I

g r a n t e d a s t a y on July 16, 2021. Following briefing by the parties, I heard oral

argument on January 5, 2022. At that oral argument, Plaintiff argued that Defendant’s

motion should not be granted at that time, and represented that discovery was

necessary. I granted limited discovery, but indicated that Defendant could

subsequently renew its motion in the form of a Motion for Summary Judgment.

On April 8, 2022, Defendant notified me that more than 90 days had elapsed with

Plaintiff having engaged in no discovery, nor taken any other action in the case.

Accordingly, on April 18, 2022, Defendant filed a renewed Motion for Summary

Judgment (the “Motion”). On July 29, 2022, Plaintiff filed his Answering Brief.

Attached to the Answering Brief was Plaintiff’s affidavit (the “Affidavit”), which I have

reviewed as part of the record. On August 19, 2022, Defendant filed its Reply Brief. On

11 Pursuant to Super. Ct. Civ. R. 12(c). 5 September 26, 2022, I held oral argument. This is my decision on the Motion for

Summary Judgment.

IV. STANDARD OF REVIEW

A party is entitled to summary judgment, and judgment shall be entered

forthwith, when the record shows 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.”12 I m u s t

“examine the record to determine whether, after viewing the facts in the light most

favorable to the nonmoving party, the moving party has demonstrated that no material

issues of fact are in dispute and it is entitled to judgment as a matter of law.13 The

Delaware Supreme Court has held that:

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.14

In response to Defendant’s Rule 56 motion, Plaintiff “may not rest upon the mere

12 Super. Ct. Civ. R. 56(c). 13 Mason v. United Servs. Auto. Ass'n, 697 A.2d 388, 392 (Del. 1997). 14 Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

6 allegations or denials of [its] pleading, . . . [but] must set forth specific facts showing

that there is a genuine issue for trial.” 15 Similarly, Plaintiff does not meet its

responsive burden, and may not successfully oppose a summary judgment motion, by

simply reiterating those allegations or denials in an affidavit.16 In this case, Plaintiff’s

Affidavit does more than simply reiterate mere allegations or denials; it sets forth

facts supporting his position.

Under this standard of review, and since no additional discovery has been

conducted in this case, I must examine Plaintiff’s allegations in the context of the

existing documents of record in the pleadings to determine whether judgment as a matter

of law is appropriate.

V. ANALYSIS A. DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW AS TO COUNT I, PROMISSORY ESTOPPEL, BECAUSE THERE IS EVIDENCE OF RECORD WHICH COULD ESTABLISH THE NECESSARY ELEMENTS OF PROMISSIORY ESTOPPEL UNDER DELAWARE LAW.

The necessary elements of a claim for promissory estoppel are well-settled

under Delaware law. Plaintiff has the burden of proving all four elements by clear

and convincing evidence:

(1) a promise was made;

(2) it was the reasonable expectation of the promisor to induce action or

15 Super. Ct. Civ. R. 56(e). 16 Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888 (1990).

7 forbearance on the part of the promisee;

(3) the promisee reasonably relied on the promise and took action to his detriment, and,

(4) such promise is binding because injustice can be avoided only by enforcement of the promise.17

The purpose of the promissory estoppel doctrine is “to prevent injustice.” 18 The

doctrine is, in essence, a substitute for consideration where no contract, or other

means of enforcing the promise, exists. 19 P romissory estoppel does not create a

contract where none exists, but, on appropriate facts, provides a substitute mechanism

to enforce promises which were intended and expected to elicit action on the part of

the promisee. There must be “an actual promise or definite assurance … Mere

expressions of opinion, expectation or assumption are insufficient.”20

In this case, fact testimony and relevant documentation are sufficient to

prove each element of the promissory estoppel claim. Plaintiff has first-hand

knowledge of the circumstances of his employment and retirement. Accordingly,

he can present a showing of proof on each element through his testimony and

relevant documentation. S i m i l a r l y , Defendant has first-hand knowledge of the

evolution of the Manual over time and its applicability to all employees of

17 Lord v. Souder, 748 A.2d 393, 399 (Del. 2000); Harmon v. Delaware Harness Racing Comm., 62 A.3d 1198, 1201 (Del. 2013); Keating v. Board of Education, 1993 WL 460527 (Del. Super. Nov. 3, 1993). 18 Lord, 748 A.2d. at 388. 19 Id. at 400. 20 Reeder v. Sanford School, Inc., 397 A.2d 139, 141 (Del. Super. Jan. 16, 1979).

8 Defendant, including Plaintiff. Accordingly, it can dispute Plaintiff’s testimony on

each element through its testimony and relevant documentation.

Plaintiff proffers his own testimony essentially as follows. He was employed

by Defendant as a police officer beginning in 1991, and that during his time working

with a small police department there were issues with Defendant hiring police

officers and paying for their training and certification only to have a larger police

department hire them for more money and benefits. He understood the separation

bonus to be an inducement for all its employees to stay with Defendant, despite

other opportunities at higher paying, larger police departments. He saw no real

benefit to leaving because of his employment package, which included the

separation bonus, generous medical benefits, generous vacation, state retirement,

salary increases, and steps for time and grade. Defendant adopted the separation

bonus in 2001 and he had worked long enough to be eligible for the bonus. He

believed that he was under that version of the separation bonus provision because,

despite changes to its policies in the past, Defendant had not applied them

retroactively, but only prospectively. He did not think any changes in the separation

bonus would apply to him because he had already worked long enough to qualify

for it. Because he did not receive prior notice of the change in the separation bonus

policy, he had no opportunity to retire with the benefits that he accrued before the

new policy took effect.

Defendant proffers its own testimony and related documentation as discussed 9 under each element of the claim, below.

A. Promise.

As to the first element of promissory estoppel, that Defendant made a promise

to Plaintiff, Plaintiff simply proffers the language of the 2001 separation bonus

policy and the prior practices of Defendant with regard to administering that policy,

arguing that whether this constitutes a promise is a question of fact for the jury.21

Defendant argues that Plaintiff (1) relies only on the language of the 2001

separation bonus policy to claim that a promise existed, (2) acknowledges the Manual

and its amendments were adopted by Defendant as general policies only, (3) does not

assert that Defendant made any separate verbal or other representations to him, and (4)

does not assert that the Manual was applied differently to him than to any other

employees. Thus, argues Defendant, Plaintiff’s claim is based on self-serving,

conclusory statements and not facts alleged on the record.

Defendant argues that it is well-settled under Delaware that employee

handbooks and manuals do not create contracts between employer and employees,

and that the employment at will relationship can only be modified by clearly

affirmative conduct on the part of the employer.22 This is particularly true where the

21 Konitzer v. Carpenter, 1993 WL 562194, at *23 (Del. Super. Dec. 29, 1993). 22 Mann v. Cargill Poultry, Inc., 1990 WL 91102, at *5 (Del. Super. 1990), aff'd, 584 A.2d 1228 (Del. 1990); Heideck v. Kent Genl. Hospital, Inc., 446 A.2d 1095 (Del. 1982); Avallone v. Wilmington Med. Ctr., Inc., 553 F. Supp. 931, 936–37 (D. Del. 1982); Asher v. A.I. DuPont Inst. of Nemours Found., 1987 WL 14876, at *3 (Del. Super. 1987). 10 employer reserves the right to amend the handbook or manual from time to time. 23

Defendant distinguishes the sole Delaware case that held that a policy in an employee

handbook could create a promise, or “contractual rights in appropriate

circumstances,”24 on the basis that in that case the employer disregarded its own policy

and created a pretext for termination of the employee.

However, Plaintiff in this case is not asserting contract rights in the Amended

Complaint.25 He does not claim that the Manual created a contract between himself

and Defendant, but rather that, under the promissory estoppel doctrine, Defendant

made a promise to him.

Defendant argues that Plaintiff proffers no evidence that a promise was in fact

made to him. For example, in a case where Plaintiff pled that his superior had made

him a promise of a full appeal hearing prior to termination, he asserted no facts

supporting that such promise was made with the expectation of any inducement, nor

that he acted in reliance thereon. This Court held that an estoppel claim could not be

premised on alleged “long standing policies and practices” of the employer. 26

Defendant also cites a line of Delaware cases in which promises were found to exist

for purposes of promissory estoppel,27 and contrasts those cases to this case.

23 Mann at *1. 24 Crisco v. Board of Education, 1988 WL 90821 (Del. Ch. Aug. 29, 1988). 25 A contract claim in the original Complaint was subsequently removed. 26 Witzke v. Kent Cty. SPCA, 2014 WL 4298210 (Del. Super. Aug. 29, 2014). 27 Lord v. Souder, 748 A.2d at 399 (employer provided a direct assurance that plaintiff would be protected from reprisals if she disclosed information of wrongdoing); Harmon, 62 A.3d at 1200-1201 (suspended plaintiff had specifically been told that he would be reinstated if certain criminal charges 11 Accordingly, argues Defendant, since Plaintiff clearly fails to meet the first

element of the “promissory estoppel” test, and since all four elements of the

promissory estoppel test must be satisfied for Plaintiff to state a claim,28 I can end my

analysis here and grant its Motion. I disagree with Defendant. At this stage of the

proceedings, in my view Plaintiff has proffered sufficient facts as to whether there

was a promise made by Defendant to Plaintiff to survive the Motion.

B. Reasonable Expectation by Defendant of Reliance by Plaintiff

As to the second element of promissory estoppel, that it was the reasonable

expectation of Defendant to induce action or forbearance on the part of Plaintiff,

Plaintiff proffers his knowledge of retention challenges within the police force.

Additionally, Plaintiff argues that the separation bonus policy itself leads to the

reasonable inference that it was an incentive to induce longer service with

Defendant counters that there is no evidence that it had a reasonable

expectation that Plaintiff would rely on the 2001 separation bonus provision, let alone

take action or forbearance based on that reliance. “[P]laintiff must prove that defendant

made a promise with the intent to induce action or forbearance,”29 a n d Plaintiff does

were cleared; this occurred, but the employer reneged); Reeder, 397 A.2d at 140 (plaintiff alleged that headmaster had assured him that his salary would not be reduced as a result of the school’s decision to drop football); Keating, at *1-2 (plaintiff teacher told directly by her principal that she would be rehired once she had a certification). 28 VonFeldt v. Stifel Financial Corp., 714 A.2d 79, fn. 22 (Del. 1998). 29 VonFeldt, 714 A.2d at 87. 12 not allege, and nothing in the record demonstrates, that Defendant intended to retain

Plaintiff (or any employee) in employment for a certain number of years. There is no

evidence that any specific promises were ever made to Plaintiff individually, and the

various changes to the separation bonus policy were made and promulgated to all

employees at the same time. There is no allegation that Plaintiff ever expressed a

desire to leave; that he was an indispensable employee; or that he was sought out by

other employers.

I disagree with Defendant. At this stage of the proceedings, in my view

Plaintiff has proffered sufficient facts as to whether there was a reasonable

expectation by Defendant that Plaintiff would rely on the separation bonus provision

to survive the Motion.

C. Reasonable Reliance by Plaintiff and Action by Plaintiff to his Detriment based upon that Reliance.

As to the third element of promissory estoppel, that Plaintiff reasonably relied

on the promise and acted to his detriment, Plaintiff proffers his testimony that he

was asked by Chiefs of several larger police departments which paid higher salaries

to apply for employment, including Lewes, Bethany Beach, and Fenwick Island. He

will testify that he declined because he was working toward eligibility for

Defendant’s separation bonus, and once eligible was continuing to serve to obtain

the bonus.

Defendant argues that Plaintiff must show that he “actually relied on the

13 promise, and that he suffered injury as a result,”30 a n d t h a t Plaintiff’s claims that

his reliance consisted of maintaining his employment with the Defendant and turning

down employment with another employer fail both legally and logically. First,

continued employment -- without more -- is insufficient to establish reasonable

reliance. 31 Second, Plaintiff’s reliance on an outdated provision in the Manual is

unreasonable. Third, the separation bonus provision did not restrict Plaintiff from

seeking other employment and benefits at any time.

Nor, argues Defendant, is there any evidence that Plaintiff took any “injurious

action”32 in reliance on the separation bonus policy. Plaintiff started working for

Defendant in 1991. When Defendant first adopted the Manual in 1995, there was no

separation bonus provision at all. The separation bonus provision was added in 2001,

at which time Plaintiff did not yet qualify for the bonus. Thus, Plaintiff did not work

from 1991-2001 in reliance on a separation bonus. Defendant started discussion of

changing the separation bonus provision in October, 2013, but the change did not

actually become effective until January, 2014. Thus, if Plaintiff had retired during

this three-month period before the policy changed, he would have received a 20-year

bonus under the 2001 provision. However, he did not do so. He expressed no

dissatisfaction with the 2014 changed policy and continued to work for Defendant

30 VonFeldt, 714 A.2d at 87. 31 Mann v. Cargill Poultry, at *7 (“continuing to work at a job upon learning of a policy is not sufficient to constitute consideration”). 32 Harmon, 62 A.2d at 1202. 14 under that policy until 2019, when he retired. If Plaintiff had worked another 2½ years

for Defendant, he would have received the maximum bonus. However, he did not do

so. He retired in 2019. Thus, argues Defendant, Plaintiff was the arbiter of his own

fate and there is no evidence of injurious action by Plaintiff.

I disagree with Defendant. At this stage of the proceedings, in my view

Plaintiff has proffered sufficient facts as to whether there was reasonable reliance by

Plaintiff, and action by Plaintiff to his detriment based upon that reliance, to survive

the Motion.

D. Avoidance of Injustice.

As to the fourth element of promissory estoppel, Plaintiff proffers that, unless

Defendant’s promise to Plaintiff is enforced, there will be an unjust result. “The

final element of a promissory estoppel claim is a finding that the promise must be

enforced to avoid injustice.”33 Plaintiff will testify that he worked for Defendant

from 1991 until the adoption of the policy in 2001, then until 2006, when he had

earned a separation bonus under the original 2001 policy, until 2014, when the policy

was changed, until 2019, when he retired. When he retired, he requested the

separation bonus and was given nothing. Plaintiff will testify that, in the past, he was

“grandfathered” with respect to amendments to benefits and remained under the

original governing policy, and that he was never given the information to allow him

33 Harmon, 62 A.3d at 1202. 15 to retire while the bonus was still available before the 2014 amendment.

Defendant argues that, on the face of the pleadings and the documentary

record, this final element cannot be met because no “injustice” results from Defendant’s

application of the current (2019) version of the separation bonus provision that

existed at the time Plaintiff retired. Plaintiff, as a result of his own actions, got

exactly what he was entitled to at the time of his retirement, so there can be no

injustice.

I disagree with Defendant. At this stage of the proceedings, in my view

Plaintiff has proffered sufficient facts as to whether he suffered an injustice –

receiving no separation bonus -- to survive the Motion.

To summarize, in my view there is sufficient evidence of record on all four

elements of promissory estoppel to create a genuine issue of material fact, and thus

Defendant is not entitled to judgment as a matter of law. For the foregoing reasons,

Defendant’s Motion for Summary Judgment as to Count I, Promissory Estoppel,

pursuant to Superior Court Civil Rule 56(b) is DENIED.

B. DEFENDANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW AS TO COUNT II, A CLAIM OF VIOLATION OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING, BECAUSE THERE IS NO EVIDENCE OF RECORD WHICH COULD ESTABLISH THE ELEMENT OF FRAUD.

The doctrine of violation of the covenant of good faith and fair dealing is a

judicially created exception to the general rule of at-will employment. In the

16 employment context, Delaware courts have applied the doctrine only in certain cases

of termination of employment. 34 Delaware law recognizes four broad categories

where the doctrine may apply: (1) where the termination violated public policy; (2)

where the employer misrepresented an important fact on which the employee relied

to either accept a new position or remain in a present one; (3) where the employer

used its superior bargaining power to deprive the employee of clearly identifiable

compensation related to the employee's past service; and, (4) where the employer

falsified or manipulated employment records to create fictitious grounds for

termination. 35 A finding of a breach of the implied covenant of good faith and fair

dealing requires that the employer’s conduct “constitute ‘an aspect of fraud, deceit or

misrepresentation,’” such that it is “intentionally deceptive in some material way to the

contract.”36

In my view, Plaintiff’s claim that Defendant violated the implied covenant of

good faith and fair dealing fails on the face of the pleadings for several reasons. First,

there was no termination of Plaintiff’s employment, and the doctrine has historically

only been applied in termination cases.37 Plaintiff voluntarily retired. He does not

34 See Merrill v. Crothall-American Inc., 606 A.2d 96 (Del. 1992) (employer deceptively hired plaintiff while intending to replace him as soon as it found a better candidate, then fired plaintiff); Schuster v. Derocili, 775 A.2d 1029, 1035 (Del. 2001) (termination for failure to submit to sexual harassment); E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 442 (Del. 1996) (doctrine asserted but found not to be violated where employee was terminated for questioning the propriety of employer’s business practices). 35 Lord v. Souder, 748 A.2d at 400. 36 Pressman, supra, 679 A.2d at 440, citing Merrill v. Crothall- American Inc. [emphasis supplied] 37 Id. at 441. 17 claim, nor is there any evidence on the record, that there was any type of constructive

termination. Thus, the doctrine is inapplicable.

Second, even if the doctrine were applicable, none of the four broad factual

categories where Delaware law recognizes the doctrine are applicable to this case.

Third, as discussed earlier in this opinion, there remains an issue of fact as to

whether there was a promise to Plaintiff by Defendant that created an implied contract

between the parties, and the Manual disclaims that it serves any such purpose.

Fourth, and most important to me, there is no evidence on the record of

Defendant’s fraud, deceit, misrepresentation, or intentional deception of Plaintiff --

which are required to state a claim for breach of the implied covenant of good faith

and fair dealing. Defendant was transparent in the way it amended the Manual. The

amendments were publicly adopted by formal action at regular meetings, with

publicly noticed agendas, and minutes which reflect thoughtful and thorough public

discussion. Further, a full copy of the Manual, including the amendment Plaintiff

objects to, was provided to all employees, including Plaintiff, via email.

For the foregoing reasons, I grant summary judgment in favor of Defendant as

to Count II, Breach of the Implied Covenant of Good Faith and Fair Dealing,

pursuant to Superior Court Civil Rule 56(b). There is no genuine of material fact,

Plaintiff has had ample opportunity to present evidence and has shown none, and thus

Defendant is entitled to judgment as a matter of law on Count II, which is

DISMISSED. 18 VI. CONCLUSION

For the reasons discussed above, Defendant’s Motion for Summary Judgment

pursuant to Superior Court Civil Rule 56(b) is DENIED as to Count I, Promissory

Estoppel, and GRANTED as to Count II, Breach of the Implied Covenant of Good

Faith and Fair Dealing. Count II is DISMISSED.

IT IS SO ORDERED.

/s/ Craig A. Karsnitz

cc: Prothonotary