FORD MOTOR CO. v. JACKSON

(ON REHEARING)

Decided December 18, 1975., 395 Mich. 578. Rehearing granted 395 Mich. 924.

Decided December 30, 1976. Rehearing denied and order modified 400 Mich. 953.

COLEMAN, J.

CLAIM OF BANIA

This is one of a series of test cases in which the Court interprets from varied factual situations the concept of back-to-work pay as provided in the Michigan Employment Security Act (MESA).

The specific question assigned to the claim of Bania against Ford Motor Company (Ford) is:

Does the payment of vacation pay during a period of unemployment commencing with a layoff under the provisions of § 27(c)(2) of MESA have any effect upon the computation of time necessary to qualify for a back-to-work payment?

We find that the designated paid vacation period cannot be calculated in determining qualification for back-to-work pay. Also, in this case claimant was notified well in advance that he would be laid off as of Monday, July 15, 1968, so regardless of the computation of vacation time, he was not laid off in excess of three weeks.

I. FACTS

Claimant Bania and others in the same plant were notified on March 12 and April 29, 1968 that there would be a layoff and vacation shutdown of the plant beginning Monday, July 15, 1968. The notice relative to Bania read:

"The VACATION and LAYOFF Schedule shall begin: Week of July 15, 1968 as a LAYOFF. Week of July 22 and 29th as a VACATION SHUTDOWN."

Claimant Bania was laid off beginning July 15 for a period of two weeks. He requested and received one week of vacation beginning July 29. He returned to work on Monday, August 5. Claimant's vacation (full) pay had been received with his last paycheck on July 12. The Michigan Employment Security Appeal Board in addition awarded Bania back-to-work benefits, which decision was reversed by the Ingham Circuit Court.1 The Court of Appeals in turn reversed the Ingham Circuit Court. 47 Mich.App. 700; 209 N.W.2d 794 (1973). Ford now appeals.

II. MICHIGAN EMPLOYMENT SECURITY ACT

MCLA 421.27(c)(2); MSA 17.529(c)(2):

"When an individual has had a period of unemployment: (i) for which he has been paid benefits for 1 or more weeks or has received credit for a waiting week, (ii) which commenced with a layoff by an employing unit that continued with such employing unit for more than 3 weeks, and (iii) which has been terminated by his accepting and engaging in full-time work with an employing unit within the 13 weeks immediately following his last week of employment with such employing unit, such individual shall be paid, for the most recent week in such period for which benefits are payable or were paid to him or for which he was entitled to credit for a waiting week, an amount equal to his currently applicable weekly benefit rate in addition to any benefits otherwise payable or paid to him for such week."

MCLA 421.48; MSA 17.552:

"All amounts paid to a claimant by an employing unit or former employing unit for a vacation or a holiday, and amounts paid in the form of retroactive pay, or in lieu of notice, shall be deemed remuneration in determining whether an individual is unemployed under this section and also in determining his benefit payments under section 27(c), for the period designated by the contract or agreement providing for the payment, or if there is no contractual specification of the period to which such payments shall be allocated, then for the period designated by the employing unit or former employing unit."

III. VACATION PAY

Ford claims that the Court of Appeals erred because § 27(c)(2) does not provide for back-to-work pay under the stated circumstances. Ford argues that claimant had not had a period of unemployment which commenced with a layoff and which lasted in excess of three consecutive weeks. Bania was on vacation and received vacation pay for one week which was included by claimant in his computation of time.

Claimant Bania argues that layoffs are measured from the last day of work2 to the first day of return and that he is eligible for back-to-work pay because he was laid off, although not unemployed, in excess of three weeks. But this computation included vacation time plus the Saturday and Sunday before the layoff as noticed.

Applying the rationale of test case General Motors Corp v Erves, we proceed to an analysis based upon the economic (wage) impact.

Justice WILLIAMS, writing in a related opinion, Brown v LTV Aerospace Corp, 394 Mich. 702; 232 N.W.2d 656 (1975), states:

"That the employer may lawfully designate a vacation period during a layoff for the allocation of vacation pay has been settled in this state. See Malone v Employment Security Commission, 352 Mich. 472; 90 N.W.2d 468 (1958)."

Of specific relevancy are the parts of § 48 which read:

"An individual shall be deemed `unemployed' with respect to any week during which he performs no services and with respect to which no remuneration is payable to him."

Claimant's one week of vacation pay is treated as remuneration under § 48, thus leaving him with two weeks of unemployment.3

In accordance with Brown, claimant Bania lost two weeks of wages and he also was "unemployed" for two weeks. Claimant, however, would have his cake and eat it too. He wishes full pay for the week of vacation and also to have that week credited for back-to-work benefits. Such a result would do violence to the intent of the act which speaks throughout to "unemployment". The title declares that it is an act "to provide for the protection of the people of this state from the hazards of unemployment". The declaration of policy speaks solely of "unemployment" (i.e., "Economic insecurity due to unemployment", "Involuntary unemployment", "unemployed worker" etc.) and provides for the systematic setting aside of funds to provide benefits for "periods of unemployment". MCLA 421.2; MSA 17.502.

It is highly unlikely that in this context the Legislature intended a "windfall", as it has been aptly designated.

However, claimant Bania still is not entitled to back-to-work pay regardless of whether one accepts his rationale of this battle of semantics.

Notice well in advance was given to claimant of the layoff beginning Monday, July 15, 1968. Such advance notice was certainly in his best interest. Bania then returned to work in exactly three weeks after July 15. Even if we accepted claimant's argument (which we do not) that he actually was laid off on Friday because he conceivably could have been called in for work during the weekend, claimant fails. His logic is defective on its face. If he were laid off Friday, he would not have been called in for work Saturday or Sunday. If layoff status began on Monday, under his argument he would have been available for week-end work. He is either laid off on Friday or he is not. We find that he was not.

It is a heady experience for any of us to be in a situation of "Heads I win, tails you lose", but if business is to thrive so that jobs will be available, a sound business and commonsense approach must be applied.

From whatever aspect the circumstances of this case is viewed — whether it be the intent of the act, the application of logic or common sense or a balanced weighing of the common welfare — claimant Bania did not qualify for back-to-work benefits.4

The Court of Appeals is reversed.

CLAIM OF MOHAMMED

The question assigned to this case is:

Can a "class action" appeal including a successful Michigan Employment Security Commission claimant in one county filed before an appeal by the unsuccessful employer in another county, force dismissal of the second appeal while the first is pending?

Under the circumstances of this case, we hold that the Ingham County appeal should not have been dismissed and therefore we reverse the Court of Appeals.

I. FACTS

Mohammed, a resident of Wayne County, was employed at Ford's Sterling plant when he and others were notified that the plant would be shut down from July 22 through August 9, 1968. Although Mohammed's last day of work was Friday, July 19, 1968, he had received notice that the layoff would begin Monday, July 22. He returned to work on Monday, August 12.5 He received no vacation pay. Nevertheless, he was administratively awarded back-to-work benefits.

The MESC Appeal Board affirmed the referee's ruling that Mohammed and other test claimants were entitled to back-to-work benefits. Ford appealed.

Prior to Ford's appeal to the Ingham Circuit Court, Mohammed joined with five others6 in filing (with later amendment) a "class action" appeal in Wayne Circuit Court. Of these, two resided in other counties and four were successful claimants. Wayne Circuit Judge O'Hair eventually dismissed the Wayne claims for lack of jurisdiction, adding that the arguments for "class action" also failed. The Court of Appeals affirmed the decision and this Court denied appeal.

The Court of Appeals dismissed the Ingham appeal on the basis that the Wayne appeal was still pending.

Other questions arising from the facts of the Mohammed claim are answered in other test cases, so we adhere solely to the assigned question as stated.

II. ABATEMENT OF APPEALS

The Court of Appeals, in dismissing Ford's Ingham County appeal, cited GCR 1963, 116.1(4):

"In a party's first responsive pleading, or by motion filed not later than his first responsive pleading, a party may demand that service of process be quashed or that judgment be entered dismissing 1 or more claims asserted against him upon any of the following grounds:

* * *

"(4) another action is pending between the same parties involving the same claim."

Mohammed, however, had won his case, having benefited from the decision of the appeal board. Claimants had presented various factual situations. Mohammed and three other Wayne residents had prevailed and in appealing had no viable issue in dispute.

GCR 1963, 208.67 permits a class action only when "a common relief is sought". The Wayne suit was instituted by claimants seeking back-to-work benefits. But Mohammed already had been awarded back-to-work benefits and therefore was an improper member of the "class" in that he did not seek the "common relief" of the class and had no standing in such an action. He was not aggrieved.

It is a general rule in this state8 and elsewhere that only a party aggrieved by a decision has a right to appeal from that decision.

In Whiting v Neuman, 11 Mich.App. 201; 160 N.W.2d 795 (1968), T.G. KAVANAGH (now Chief Justice of this Court) wrote:

"We also agree that only an aggrieved party may properly seek relief from an appellate court * * *."

Whiting refers with approval to the case of In re Estate of Trankla, 321 Mich. 478; 32 N.W.2d 715 (1948), which has been substantially restated in 7A Callaghan's Michigan Pleading & Practice (2d ed), § 54.08.9

4 Am Jur 2d, Appeal and Error, §§ 182, 184, 185, concludes that:

"A party who could not benefit from a change in the judgment has no appealable interest.

* * *

"of course one may not appeal from a judgment, order or decree in his favor by which he is not injuriously affected.

* * *

"a successful party who has been granted full relief is not entitled to a review of alleged defects in the proceedings on which the judgment is founded * * *."

It is properly argued by Ford that the mere existence of an appeal pending in one court is not of itself sufficient to abate a second appeal in another court.10 The argument of claimants is unreasonable which would require dismissal of the second appeal, then dismissal of the first appeal, followed supposedly by a repeat performance of filing an appeal in the second court.

The Attorney General speaking for MESC said:

"the appeal to the circuit court for the county of Ingham was * * * not subject to dismissal unless and until it was finally held that the circuit court for the county of Wayne had jurisdiction. To hold otherwise would be to hold that a party who is entitled to appellate review may have that right to review defeated by a prior abortive appeal by the opposite party."

We agree that the Ingham Circuit Court was correct in refusing to dismiss the second appeal when on its face the first appeal was invalid, two of the claimants living out of the Wayne Circuit Court's jurisdiction and the remaining four having no right of appeal because they were not aggrieved parties.

To hold otherwise would impose upon the courts a tortuous procedure which would undermine attempts to give aggrieved persons an opportunity to be heard on review as expeditiously and at as little cost as possible. Such a thrust is in the best interest of all parties.

We hold that Ford's appeal to the Circuit Court for the County of Ingham was erroneously dismissed by the Court of Appeals.

The Court of Appeals is reversed.

FITZGERALD and LINDEMER, JJ., concurred with COLEMAN, J.

LEVIN, J., took no part in the decision of this case.

RYAN, J.

I concur with Justice COLEMAN insofar as she holds that the Ingham Circuit Judge did not err in refusing on the record before him to grant claimants' motion based on GCR 1963, 116.1(4).

For the reasons stated in my opinion in General Motors Corp v Erves (On Rehearing), 399 Mich. 241; 249 N.W.2d 41 (1976), I conclude that:

"for the purposes of § 27(c)(2)(ii) [of the Employment Security Act1], an employee's layoff begins when he first becomes `unemployed' within the meaning of § 482 with respect to his initial employer and continues until the employee is no longer `unemployed' with respect to such initial employer." 399 Mich at 264-265.

Section 48 of the Employment Security Act provides in relevant part:

"An individual shall be deemed `unemployed' with respect to any week during which he performs no services and with respect to which no remuneration is payable to him, or with respect to any week of less than full-time work if the remuneration payable to him is less than his weekly benefit rate * * *.

"All amounts paid to a claimant by an employing unit or former employing unit for a vacation or a holiday, and amounts paid in the form of retroactive pay, or in lieu of notice, shall be deemed remuneration in determining whether an individual is unemployed under this section and also in determining his benefit payments under section 27(c), for the period designated by the contract or agreement providing for the payment, or if there is no contractual specification of the period to which such payments shall be allocated, then for the period designated by the employing unit or former employing unit * * *."

Claimant Bania became laid off and unemployed by Ford Motor Company on Monday, July 15, 1968. He returned to work on Monday, August 5, 1968; however, he received vacation pay from Ford Motor Company for the work week beginning Monday, July 29, 1968. He was, therefore, no longer unemployed by his initial employer within the meaning of § 48 as of Monday, July 29. He was not laid off in excess of three weeks and is not entitled to back-to-work benefits under § 27(c)(2).

Claimant Mohammed's last day worked with Ford Motor Company was Friday, July 19, 1968 and he returned to work with Ford Motor Company on Monday, August 12, 1968. For the reasons set forth in my opinion in Erves, supra, I hold that he is not entitled to back-to-work benefits under § 27(c)(2).

WILLIAMS, J.

The present proceeding like General Motors Corp v Erves, 395 Mich. 604; 236 N.W.2d 432 (1975), requires this Court to construe § 27(c)(2) of the Michigan Employment Security Act (MESA)1 and in particular the following language from that section:

"a period of unemployment * * * which commenced with a layoff by an employing unit that continued with such employing unit for more than 3 weeks * * *."

In addition we are called upon to resolve a procedural question concerning the jurisdiction of the Ingham Circuit Court to review an appeal taken by Ford Motor Company from an adverse decision by the Employment Security Appeal Board.

In this action we consider the following:

1. Whether a laid-off employee whose last day of work was on Friday, July 12, 1968, who was advised a layoff would begin July 15, 1968, who returned to work three weeks and two days later on Monday, August 5, 1968, and who received vacation pay allocated by the employer to the last week of this period, is entitled to back-to-work benefits under § 27(c) of the MESA. (Claim of Bania.)

2. Whether the Court of Appeals was correct in reversing the decision of the Ingham Circuit Court and dismissing the action because another action involving the same claim had previously been filed and was pending in Wayne Circuit Court. (Claim of Mohammed.)

We answer both questions affirmatively. In order to simplify matters we separate the factual and legal discussions of the claims of Bania and Mohammed.

I — CLAIM OF BANIA

A. Facts

Jan Bania was an employee of the Ford Motor Company at its Livonia plant. He was notified on April 29, 1968 by intra-company communication to all hourly employees of the Livonia plant that a scheduled plant shutdown would begin July 15, 1968 and normal operations would resume on August 5, 1968. Claimant's last day of work was Friday, July 12, 1968 and he returned to work as scheduled on Monday, August 5, 1968.

At the hearing Donald W. Shepler, Supervisor of Hourly Personnel and Labor Relations, testified on cross-examination that there was no work available for Jan Bania from July 13 to August 4, 1968 because the "plant, for all intents and purposes, was on a vacation shutdown, or closed down, or whatever term you want to use".

As is permitted by § 48 of the MESA2 Ford designated the last week of shutdown for the allocation of Bania's accrued vacation pay. Bania received this pay on July 12, 1968.

Claimant filed with the commission and qualified for unemployment compensation. The commission found the week ending July 20, 1968, to be his waiting week and awarded him benefits of $50 for the week ending July 27, 1968. However, as the allocated vacation pay for the week ending August 3 was in excess of his weekly benefit rate, he was held by the commission to be ineligible for benefits during that week. Upon returning to work he applied for and was awarded back-to-work benefits of $50 for the week ending July 27, 1968.

B. Court May Reach Substantive Issue

As we uphold the Court of Appeals decision dismissing this action on procedural grounds (see § II of this opinion), it is not necessary, nor in most instances would it be appropriate, for us to then consider the substantive issues. Normal practice would dictate that the parties refile in circuit court, and start the process anew. However, special circumstances are present in this action which make treatment of the substantive issue proper. First, the cases before this Court are test cases representing thousands of similar claims which have been pending since 1968. Further delay in resolution of the issues is undesirable. Second, the parties were put on notice that we wished to consider the specific issue relating to the impact of receiving vacation pay on eligibility for unemployment. They have briefed the issue in a commendable fashion and do not object to our reviewing this issue. Their briefs are supplemented by the various opinions from the administrative and judicial bodies below who have discussed this issue. Inasmuch as we have the authority to act under GCR 1963, 865.1(7), we deem it appropriate to consider and decide the substantive issues raised in the claim of Bania.

C. Receipt of Vacation Pay Does Not Terminate Layoff

Bania was out of work from July 12, 1968 to August 5, 1968. (See § I, D of this opinion for discussion as to why layoff period is measured from July 12, the last day worked.) As is permitted by § 48 of the MESA3 his employer designated the week ending August 3, 1968 for the allocation of vacation pay. Receipt of payments "for a vacation or a holiday" disqualify an employee for unemployment compensation benefits during the period designated by the employer because the employee is not "unemployed" within the meaning of § 48. See Brown v LTV Aerospace Corp, 394 Mich. 702, 708; 232 N.W.2d 656 (1975). However, it does not follow that receipt of such payments means that he is no longer laid off under § 27(c)(2).4

Referee Wesleyan Voigt was correct when he concluded that:

"the claimant was on lay-off and for the last week of such period, he was issued vacation pay which exceeded his weekly benefits rate, and consequently, was ineligible for benefits for this particular week. However, he performed no work for his employer during such week, and this was a continuance of his layoff which began July 12, 1968. Under the circumstances the vacation payment is not found to affect his lay-off for purposes of qualification for the so-called back-to-work payment. This provision of the act does not require that an individual be eligible for waiting week credit and for benefits in each of the weeks involved in the lay-off period as he may be eligible for only a waiting week, or one or more benefit payment weeks."

As has been stated in this opinion and in Erves, supra, the term "layoff" denotes a particular status between an employer and his employee whereby the employee's work is terminated at the will of the employer for a specific or indefinite period of time because no work is available. While Jan Bania received vacation pay allocated to the week ending August 3, that week there was no available work for Bania with Ford Motor Company. Consequently, he must be considered laid off for the entire period from July 12, 1968 to August 5, 1968.

Our conclusion that receipt of vacation pay does not interrupt a layoff period is also supported by the fact that the MESC, the agency charged with the administration of the MESA, treats the receipt of vacation pay in the same manner. Section 5648 of the MESC manual provides in pertinent part:

"1. A layoff period will not be interrupted by:

* * *

"b. A vacation payment or a holiday payment made for any period during the layoff period, even though under contract provisions such payment is allocated to a specific day(s) or week(s) during the period of unemployment, or, in the absence of contract provisions, is so allocated by the employer. The payment will, of course, as provided in Section 48 of the Act, be held to be remuneration and will be considered in determining eligibility for waiting period credit or benefits, but, since no work is performed, receipt of the payment does not interrupt the layoff." (Emphasis added.)

D. Layoff Commences as of the Last Day Worked

In General Motors Corp v Erves, 395 Mich. 604, 637; 236 N.W.2d 449 (1975) (opinion of WILLIAMS, J.), we said that for the purposes of determining the eligibility for back-to-work payments the legislators intended that the layoff period be measured from the last day worked. This conclusion was based in part on the fact that elsewhere in the MESA a "layoff" was measured as of the last day worked5 and because the MESC, the agency charged with the administration of the MESA, both prior and subsequent to the adoption of the 1967 amendments to the back-to-work payment provisions, treated a layoff as commencing as of the last day worked.

Jan Bania's last day of work was Friday, July 12, 1968 and, for the purposes of determining eligibility for back-to-work payments, the layoff period must be measured from that date. That the employer posted an intra-company notice to all hourly workers on April 29, 1968 which listed the "Vacation Layoffs" as beginning the week of July 15, 1968 does not alter this fact.

In Erves we said that a layoff is "a termination of employment at the will of the employer * * *." 395 Mich. 633. While the employer has the power to lay off his employees in accordance with the exigencies of the production schedule, it is the statute, not the employer, which determines when a layoff commences for purposes of determining eligibility for back-to-work benefits. If the period of the layoff for § 27(c)(2) purposes was measured solely by the dates set forth in an employer's notice to his employees, the way would be opened for the employer to make the notice self-serving in order to deny employees benefits to which they are rightfully entitled.

While not dispositive, it appears that although the layoff was scheduled by announcement to begin Monday, July 15, the actual plant shutdown began July 13. The Supervisor of Hourly Personnel and Labor Relations of the Ford Motor Company, Livonia Transmission Plant, where plaintiff was employed, when asked "How many worked on July 13, Saturday, 1968?" responded, "I cannot answer you because of the shutdown for the 13th on through. * * * I would say a considerably very small work force * * *."

Claimant Bania did not work regularly on Saturdays but he was subject to call on Saturdays and actually did work three Saturdays during the year 1968 prior to this particular layoff.

During the shutdown there was no work available for a worker such as Jan Bania. In response to a question whether an employee such as Bania if he had wanted to work, could have worked between July 13 and August 4, Mr. Shepler said:

"There was not work available for the man who was on vacation or the man who was laid off, because we had established whatever maintenance personnel or whatever shipping personnel, powerhouse personnel and heat treat personnel were necessary. The plant, for all interests and purposes was on vacation shutdown * * *."

In other words, at least with regards to claimant Jan Bania, reliance on the rule of the last day worked rather than the employer announced day of layoff is a fairer expression of the actual days of separation from employment.

Holding that a layoff commences as of the last day worked for § 27(c)(2) purposes in no way impinges upon the employer's power. He still has the right, subject to any restrictions in the employment contracts, to determine who will be laid off and when their last day of work will occur.

A layoff denotes a change in the relationship between the employer and the employee. A person is laid off when his employment terminates with the employer because there is no available work for him. For Bania, as of the end of his shift on Friday, July 12, 1968, there was no available work with Ford. His employment terminated at that time and the layoff must be measured as of that date.

Bania had a "period of unemployment * * * which commenced with a layoff * * * that continued * * * for more than 3 weeks". Since the employer does not challenge the fact that Bania met the other requirements of § 27(c)(2), he is entitled to back-to-work payments.

II — CLAIM OF MOHAMMED

A. Facts

The Michigan Employment Security Commission (the commission) determined that Mohammed was entitled to back-to-work benefits and this decision was affirmed by the hearing referee. Ford appealed to the appeal board and the Claim of Mohammed was consolidated with those of Bania, Rivenburgh, Alvarado, Dzierbicki, Coddington and Jackson, claimants in other test cases. The following outlines the complex procedural course these cases took before we finally granted leave to consider the claim of Mohammed. 390 Mich. 781.

Dec. 29, 1969 — Appeal board issues decision adverse to claimant Rivenburgh.

Jan. 26, 1970 — Appeal board issues decision adverse in part to Jackson and favorable to other claimants on merits.

Jan. 12, 1970 — Rivenburgh, resident of Macomb County appeals to Wayne Circuit Court.

Jan. 27, 1970 — Remaining claimants file appeal in Wayne Circuit Court.

Feb. 5, 1970 — Alvarado, Bania, Dzierbicki and Mohammed, residents of Wayne County, file an amended appeal as a class action in Wayne Circuit Court for themselves and for Jackson, Rivenburgh and Coddington who were not Wayne County residents (hereinafter called the Alvarado case).

Feb. 6, 1970 — Ford files appeal in Ingham Circuit Court against all claimants except Rivenburgh (hereinafter called the Jackson case).

Aug. 10, 1970 — Claimants move to dismiss the Jackson case in Ingham Circuit Court for the reason that a prior action involving same parties (Alvarado) is pending in Wayne Circuit Court.

Feb. 4, 1971 — Ingham Circuit Judge denies the claimants' motion to dismiss.

Aug. 30, 1971 — Ford's motion to dismiss granted by Wayne Circuit Judge in the Alvarado case.

Sept. 10, 1971 — Claimants in the Alvarado case claim appeal with the Court of Appeals.

Nov. 9, 1971 — Ingham Circuit Judge in Jackson case issues decision on the merits against claimants.

Apr. 11, 1973 — Court of Appeals affirms the Wayne Circuit Court decision holding that several claimants in the Alvarado case were not aggrieved by the appeal board decision and the non-Wayne County resident claimants were in the wrong circuit court.

June 25, 1973 — Court of Appeals reversed Ingham Circuit Judge and dismissed Jackson cases because prior Wayne County Alvarado cases were still pending. 47 Mich.App. 700; 209 N.W.2d 794 (1973).

July 13, 1973 — Supreme Court denies application for leave to appeal in Alvarado cases. 389 Mich. 816 (1973).

Sept. 28, 1973 — Supreme Court grants leave to appeal in Jackson cases (only claimants Bania and Mohammed). 390 Mich. 781 (1973).

B. GCR 1963, 116.1(4)

The Court of Appeals was correct in reversing the Ingham Circuit Court's decision not to dismiss the Jackson case when such a dismissal was mandated by GCR 1963, 116.1(4). This court rule provides:

"In a party's first responsive pleading, or by motion filed not later than his first responsive pleading, a party may demand that service of process be quashed or that judgment be entered dismissing 1 or more claims asserted against him upon any of the following grounds:

* * *

"(4) another action is pending between the same parties involving the same claim * * *."

At the time Ford filed its appeal in the Ingham Circuit Court (the Jackson case), an appeal taken from the same appeal board decisions involving the same parties6 and involving the same claims was pending in Wayne Circuit Court (the Alvarado case). Consequently, the Ingham Circuit Court should have granted claimants' motion to dismiss based upon GCR 1963, 116.1(4).

Ford contends that the Ingham Circuit Court refusal to grant claimants' motion to dismiss was proper. It relies on 1 CJS, Abatement and Revival, § 68, p 106, which pertinently states:

"The rule that the pendency of a prior action is ground for abating a subsequent action between the same parties for the same cause, does not apply where it appears on the face of the proceedings that the first action was instituted and is pending in a court which has no jurisdiction of the parties of a subject-matter of the action."

We need not here decide the applicability of this principle to Michigan jurisprudence in general or to GCR 1963, 116.1(4) in particular since we do not find the prior action filed in Wayne Circuit to be, on the face of the proceeding, in a court "which has no jurisdiction", because as of the time of the Ingham Circuit Court's refusal to dismiss, the Wayne County case contained two undecided justiciable questions.7

III — CONCLUSION

While not required to review the Jan Bania claim, we choose to reach the substantive issues presented in that claim in order to facilitate a final resolution to the thousands of pending back-to-work claims. We find Bania was laid off as of his last day of work on Friday, July 12, 1968 and he remained laid off until he returned to work three weeks and two days later on August 5, 1968. The receipt of vacation pay allocated to the last week ending August 3, 1968 did not interrupt the layoff period. Having met the other requirements of § 27(c)(2) as well, he is entitled to receive back-to-work benefits for the week ending July 27, 1968.

The Ingham Circuit Court erred in not granting claimants' motion to dismiss on the grounds that a prior appeal taken from the same appeal board decision was pending in the Wayne Circuit Court.

No costs, a public question of first impression being involved.

KAVANAGH, C.J., concurred with WILLIAMS, J.