(dissenting).
In the instant case the issue is whether the collective bargaining agreement, the pension plan, and the supplmental agreements contemplate action initiated by an *299employee challenging his continuing disability. The majority takes the position that such action can only be initiated by the company. I am not convinced of the majority’s position under the present state of the record.
Section 64(f)(2) of the collective bargaining agreement provides in pertinent part:
An employee who has been retired on a permanent and total disability pension and who thereby has broken his seniority in accordance with subsection (1) above, but, who recovers and has his pension discontinued, shall have his seniority reinstated as though he had been on a sick leave of absence during the period of his disability retirement.
Section 4(d) of the pension plan states:
* * * * * *
Any disability pensioner may be required to submit to medical examination at any time during retirement prior to age 65, but not more than semi-annually, to determine whether the pensioner is eligible for continuance of the disability pension. If on the basis of such examination it is found that the pensioner is no longer disabled or if the pensioner engages in gainful employment, except for purposes of rehabilitation as determined by the Corporation, the pensioner will be deemed recovered and his disability pension will cease. In the event the disability pensioner refuses to submit to medical examination the pension will be discontinued until the pensioner is examined.
Section B4(e) of the implementing agreement reads:
When it becomes necessary to determine whether a disability pensioner continues to be totally and permanently disabled within the meaning of the Pension Plan, the following will implement the provisions of Article II, Section 4(c)(2) and (d) of the Plan:
(1) The Corporation will make such determination upon the basis of medical evidence satisfactory to it. If it is determined that the pensioner is no longer totally and permanently disabled, the Corporation will prepare six copies of form HRP-23 “Notice of Corporation Determination— Cessation of Total and Permanent Disability Benefits” and will furnish one copy to the disability pensioner, one copy each to the members of the Local Pension Committee, and two copies to the Board.
(2) If the Union member of the Local Pension Committee disagrees with the Corporation’s determination, the procedure described in Paragraph B4(d) above will apply.
The key to the construction of the contract is in the interpretation of the words: “When it becomes necessary to determine whether a disability pensioner continues to be totally and permanently disabled . . ” After reading all the agreements and giving them a reasonable construction, it is not clear that only the company can raise the issue of recovery and the employee must wait for it to do so. The majority admits as much when it says Delco’s interpretation is the more reasonable. One is left with the definite impression that other reasonable interpretations exist.*
If the intent of the parties to the contract was to give the company the unilateral right to initiate the inquiry of recovery, it should be demonstrated by evidence at a trial and not decided on the basis of such scanty and incomplete evidence as an affidavit of the company’s personnel director.
Because the contract provisions are ambiguous and summary judgment is appropriate only where there is no genuine issue as to any material fact, the grant of summary judgment in this case was improper.
Accordingly, I would remand the case.
The majority’s construction achieves an unjust result. Under their interpretation, the company can retire a person on disability pension and keep him on it indefinitely, regardless of the person’s health, as long as it chooses not to initiate a reexamination.