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Kolka v. Atlas Chemical Industries

Michigan Court of Appeals
Oct 21, 1968
164 N.W.2d 755 (Mich. Ct. App. 1968)

Summary

In Kolka, the plaintiff had been on disability leave for approximately one year when the employer instituted a separation-pay policy.

Summary of this case from Klein v. HP Pelzer Automotive Systems, Inc.

Opinion

Docket No. 4,475.

Decided October 21, 1968. Leave to appeal denied February 19, 1969.

Appeal from Houghton, Condon (Stephen D.), J. Submitted Division 3 October 1, 1968, at Marquette. (Docket No. 4,475.) Decided October 21, 1968. Leave to appeal denied February 19, 1969. 381 Mich. 803.

Complaint by Leo J. Kolka against Atlas Chemical Industries, a foreign corporation, for benefits due under disability pension and for separation pay. Summary judgment for defendant on both counts. Plaintiff appeals. Affirmed as to count for separation pay but reversed and remanded as to plaintiff's right to disability benefits.

Wisti, Jaaskelainen Schrock, for plaintiff.

Messner LaBine, for defendant.


Leo J. Kolka sued his employer, defendant herein, on two counts. Count I claimed a right to disability pension provided to eligible employees who had 15 years of service; count II claimed a right to separation pay which, though not part of the union contract, was made available by the company in December, 1960, when the plant was closed.

Defendant's motion for summary judgment, GCR 1963, 117.2, on both counts was granted. Plaintiff appeals.

The lower court held, as to the second count, that plaintiff furnished no consideration for defendant's offer of termination payment and therefore, as a matter of law, no binding contract between the parties existed to make such payment mandatory.

An offer of separation pay, to be accepted by an employee, requires the giving up of or forbearance to exercise some legal right. It was undisputed that plaintiff here had furnished no active service to the company since May, 1959. Therefore, unlike the employees in Cain v. Allen Electric Equipment Company (1956), 346 Mich. 568, he was in no position to comply with or give consideration for an offer of termination pay. Plaintiff's allegations in this regard, that he remained on the inactive payroll under a disability leave of absence, taken as true and viewed most favorably in his behalf, are insufficient facts to establish the consideration necessary to bind the company under its offer for termination pay. Summary judgment, as to this count, was proper.

As to count I, however, the termination of plaintiff's employment was a highly disputed fact which could not be disposed of by way of summary judgment. The court, in granting the motion for summary judgment, stated:

"The court finds from the affidavits, together with the pleadings, depositions and documentary evidence filed and submitted by the parties, that plaintiff fails to state a claim upon which relief can be granted. Specifically, it appears that plaintiff does not have 15 years of continuous service in the employ of the defendant."

It is improper to make such a finding on a motion for summary judgment where there exists a genuine issue of material fact. The matter as to count I is reversed and a trial of the issue ordered.

T.G. KAVANAGH, P.J., and McGREGOR and PHILIP C. ELLIOTT, JJ., concurred.


Summaries of

Kolka v. Atlas Chemical Industries

Michigan Court of Appeals
Oct 21, 1968
164 N.W.2d 755 (Mich. Ct. App. 1968)

In Kolka, the plaintiff had been on disability leave for approximately one year when the employer instituted a separation-pay policy.

Summary of this case from Klein v. HP Pelzer Automotive Systems, Inc.

In Kolka, the plaintiff was trying to claim severance pay from his employer in December 1960, despite not having actively worked for the company since May 1959. The Court ruled that since he was not actively employed by the company at the time he asked for severance pay (he claimed he was on the "inactive" list because of a disability), he was unable to establish the consideration necessary to bind the employer to its offer of termination pay.

Summary of this case from Shah v. City of Farmington Hills

In Kolka, the right being given up is never specifically noted, but appears to be either the right to continue working for the same employer, or the right to be compensated with termination pay by the employer after establishing eligibility for such payments.

Summary of this case from Shah v. City of Farmington Hills
Case details for

Kolka v. Atlas Chemical Industries

Case Details

Full title:KOLKA v. ATLAS CHEMICAL INDUSTRIES

Court:Michigan Court of Appeals

Date published: Oct 21, 1968

Citations

164 N.W.2d 755 (Mich. Ct. App. 1968)
164 N.W.2d 755

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