dissenting:
I agree that a resolution of the competing claims to the residual assets in Blue-field Supply Company’s (“Bluefield” or “the company”) terminated pension plan requires, at the threshold, an examination of the written terms of the 1951 plan. I cannot, however, agree with the majority’s view that the unambiguous language of that plan allowed the adoption of the terminating amendment cited by the district court as a basis for granting summary judgment in favor of the Bluefield.1 In my view, the language of the 1951 plan is reasonably susceptible to at least one contrary interpretation, thereby rendering summary judgment inappropriate.
Although it is undisputed that the 1951 plan contained an “amendment provision” allowing the company to modify the agreement, the plan also contained what the majority describes as a “nondiversion provision.” Under the terms of that provision:
“No part of the Fund or interest therein nor any item of property included therein *467shall be withdrawn, assigned or otherwise transferred in whole or in part, either by the voluntary act of the Company [i.e., Bluefield] or by operation of law, or otherwise, all right, title and interest of the Company in the Fund and all monies and property therein having been absolutely transferred and assigned by this agreement to the Trustee, to be held, managed and administered solely pursuant to this agreement. None of the assets belonging to the Fund hereby created, or of the income therefrom, shall be diverted or used for any purpose other than the exclusive benefit of the Participants as contemplated and provided by this agreement.”
Becently, the Sixth Circuit in Bryant v. International Fruit Products Co., Inc., 793 F.2d 118 (6th Cir.1986), found that a similar provision in a pension plan precluded the adoption of a residual assets amendment by the company. That provision, which the majority seeks to distinguish as a “nonreversion provision,” provided that:
In no event and under no circumstances shall any contributions to this Trust by the Employer, nor any of the Trust Estate or the income therefrom, revert to or be repaid to the Employer; and all amounts paid by the Employer to the Trustees shall be used and applied for the sole and exclusive benefit of the participants under this Trust or their beneficiaries or estates.”
The court in Bryant concluded that “[a]n agreement that provides that an act can occur in no event and under no circumstances cannot be converted into one that permits the act by amendment_” Bryant, 793 F.2d at 123.
Obviously the language in the Bluefield plan is not identical to the provision at issue in Bryant. I believe it is clear, however, that both provisions contemplate that assets assigned to a pension plan are, thereby, placed forever beyond the possibility of recapture by the donating company. Indeed, the language in the Bluefield plan is arguably stricter since it prohibits any withdrawal, assignment or transfer while the Bryant provision bars only direct reversion to the employer.
The majority, however, suggests that when Bryant is read in conjunction with In re C.D. Moyer Company Trust Fund, 441 F.Supp. 1128 (E.D.Pa.1977), aff'd mem., 582 F.2d 1273 (3d Cir.1978), the resulting synthesis supports Bluefield’s right to add its residual assets amendment. In Moyer, the court approved a residual assets amendment although the original plan barred any amendment that would cause the “trust corpus ... to be diverted to or revert to either of the employers.” Moyer, 441 F.Supp. at 1131. The court concluded that the parties to the agreement intended “trust corpus” to include only those funds necessary to satisfy the specific pension benefits stated in the plan. The majority agrees with the district court that a similar interpretation should be applied to the word “Fund” as used in the Bluefield plan. I am singularly unpersuaded by this view.
As an initial matter, I believe that the effort to reconcile Bryant and Moyer represents a questionable attempt to mix oil and water. Although both cases purport to turn on the contract language used in the pension plans, a careful reading demonstrates that each represents a competing view of desirable public policy with regard to pension plan surpluses. The court in Moyer was clearly convinced that employers should not be “penalized” for overfund-ing pension plans and that employees should not receive “windfalls due to the employer’s mistake.” Moyer, 441 F.Supp. at 1132-33. The Bryant court, however, believed that any benefit attendant a company’s effort to recapture its contributions would constitute a windfall to the employer, at least to the extent that the employer had previously obtained tax advantages from the contributions. Bryant, 793 F.2d at 123.
Neither Moyer nor Bryant are controlling authority and the majority could have elected to follow either. In light of the clear philosophical split presented by those decisions, I question the majority’s effort to apply both. Moreover, to the extent that this Circuit has taken any position on *468the policy implications raised by pension fund surpluses, we have arguably leaned toward the rationale later embodied in Bryant. See Audio Fidelity Corp. v. Pension Benefit Guaranty Corp., 624 F.2d 513 (4th Cir.1980).2
Even if Moyer alone is viewed as persuasive authority, I fail to see how it would support summary judgment in favor of Bluefield in this case. The court in Moyer did not discuss with any particularity the reason for its narrow interpretation of “trust corpus.” In the present case, however, the “Fund” to which the nondiversion clause applies is expressly defined as “[a]ll monies paid to the Trustee hereunder and all securities or other property in which the same or any part thereof is invested, together with all income arising therefrom. ...”
The majority maintains, as did the district court, that this expansive definition is limited by requirements that the trustee hold the fund “for the uses and purposes herein provided.” Although it would appear to me that the language relied on by the majority deals with the Trustee’s duties during the operation of the pension plan rather than the actual composition of the “Fund,” I do not contend that the majority’s view is totally unreasonable. The question before us, however, is not whether the interpretation of the plan advanced by the company and accepted by both the district court and the majority is unreasonable. The issue is whether the company’s interpretation is so unquestionably correct as to render summary judgment appropriate. I think it is not.
The majority concedes that “[a]t first blush,” the definition of “Fund” arguably includes residual assets. In my view the existence of a reasonable alternative interpretation of the plan, at the very least, indicates that the language of the plan is ambiguous. For purposes of summary judgment, therefore, the district court was required to either resolve the ambiguity against Bluefield as both the moving party and the drafter of the contract language or alternatively, to allow the case to proceed to the trier of fact for a determination of the intent of the parties with regard to the residual assets. Under either approach, the grant of summary judgment in favor of Bluefield was improper.
Accordingly, I would reverse the grant of summary judgment and remand for further proceedings. I, therefore, respectfully dissent.
. The majority opinion focuses upon the propriety of the 1973 residual assets amendment rather than the terminating agreement adopted by the company on August 19, 1985. Although I believe it is clear that the district court relied on the later provision, it is of no particular signifi-canee with regard to the substance of either the majority’s position or my own. Both amendments called for a reversion of surplus funds to the company. The issue of whether the plan allowed either amendment is subject to the same analysis.
. I do not suggest that Audio Fidelity is disposi-tive of the instant appeal. There are clear differences between the pension plan in that case and the Bluefield plan. Clearly Audio Fidelity may be factually distinguished on that basis alone. Nevertheless, this Court therein plainly rejected any contention that allowing surplus pension assets beyond those needed for specific benefits to be paid to employees amounted to “unjust enrichment.” Audio Fidelity, 624 F.2d at 518. At a minimum, I believe that Audio Fidelity suggests that this Court has discerned no particular public policy favoring employers in disputes involving surplus pension assets.