21 Wn. App. 1 (1978)
583 P.2d 654
JOHN E. MIKE, ET AL, Respondents,
v.
FRED THARP, JR., ET AL, Appellants, THE CITY OF SEATTLE, Respondent.
No. 5374-1.
The Court of Appeals of Washington, Division One.
August 7, 1978.
Paul, Johnson, Paul & Riley and Blair F. Paul, for appellants.
Donald W. Marken and David J. Balint, for respondents.
PEARSON, J.
This is an appeal from a defense verdict in favor of the City of Seattle, finding that the City was not liable for the tort of false arrest and imprisonment when its *3 policemen arrested a landlord and his son, Fred and Fritz Tharp, during a landlord-tenant dispute. Appellant landlord claims that it was error to permit the case to go to the jury and that a directed verdict in his favor ought to have been granted. He also contends that his case was made less effective because he was denied certain evidence and instructions by the trial court. We disagree and affirm.
Seattle police were called three times on Sunday, March 16, 1975, to settle a landlord-tenant dispute at 4132 - 25th Avenue S.W., in Seattle. The dispute arose when the Tharps locked their tenants, the Mikes, out of their house. The Mikes were renting the house from the Tharps for $100 a month, but due to chronic financial problems owed $305 in back rent as of February 1975. On March 1, Fritz Tharp, 17-year-old son of Fred Tharp, accepted $100 from the Mikes and agreed to forgive the past due rent in return for the Mikes' promise to vacate the premises.
The Tharps said that they assumed that the Mikes would move out in mid-March. Fritz and Fred Tharp checked the house on March 16 and found a lot of personal property still inside, a small amount of food in the refrigerator, a car parked in the drive, and the Mikes' dog penned in the backyard. The house was very dirty and had been unoccupied for at least 24 hours. The Tharps decided to confiscate the property. They changed the locks on the house and posted "no trespassing" signs. However, as they finished locking up the house, the Mikes arrived and demanded to be let in to the house to retrieve their belongings. They claimed that they had paid rent for March and did not intend to vacate the premises until March 30. The Tharps refused to open the house and left. On his way home, Fritz Tharp stopped at a police station and asked police to keep an eye on the property. Apparently not satisfied that the police could take care of the situation, Fritz drove back to the house and remained there to prevent entry by the Mikes.
*4 By now several relatives of the Mikes had gathered in the street and police were called. They tried to settle the dispute, but were unable to make any progress; they called their supervisor, Sgt. Pillon, to the scene. Pillon demanded that Fritz Tharp unlock the house; Fritz refused. After 7 or 8 minutes of discussion, Pillon placed Fritz under arrest. In the meantime, police called Fred Tharp and asked him to tell his son to open up the house. Fred refused and angrily stated that he was coming out to the house. When he arrived and learned that his son had been arrested, he became even more upset. Sgt. Pillon then arrested Fred; a scuffle ensued, but Fred was finally put in a police car and taken to the station.
The Mikes brought suit against Fred Tharp, Jr., alleging violations of the landlord-tenant act (RCW 59.18 et seq.), the consumer protection act (RCW 19.86 et seq.), and also claiming assault, libel, slander, unjust enrichment, and replevin. Tharps counterclaimed for back rent and property damage. Fred Tharp, Jr., denied liability to the Mikes and together with his son, Fred Tharp III (Fritz), commenced a third-party suit against the City of Seattle claiming false arrest and false imprisonment. The Mike v. Tharp suit was settled for a small sum on the day of trial, in favor of the Mikes. The matter of attorney's fees, available under RCW 59.18.290, was left to the court's discretion. The attorney for the Mikes submitted his time sheets showing 64 hours of work put into the case, and stated that his normal hourly rate was $40. The court awarded him $1,000. Appellants Tharp contend that the trial court abused its discretion in making the award of attorney's fees because the Mikes' attorney presented no evidence to justify his claim other than his time sheets and hourly rate. The Tharps also appeal the unfavorable verdict in their third-party action against the City.
We first consider the Tharps' appeal from the defense verdict in favor of the City. Both Fred and Fritz Tharp were arrested on charges of obstructing a police officer. Seattle ordinance § 12A.20.020. Sgt. Pillon testified that he *5 arrested the Tharps because they refused to cooperate with him in settling their dispute with the Mikes and because he feared a violent confrontation between the Mikes and the Tharps.
The jury was given the following instruction:
You are instructed that at all times material hereto there was in full force and effect in the City of Seattle an Ordinance providing:
"A person is guilty of obstructing a public officer if he intentionally resists, delays or obstructs a person who he knows is a public officer and such officer is acting lawfully in a governmental function."
To assist the jury in understanding when an officer is "acting lawfully" the court also instructed the jury that:
A police officer not only has the specific duty to enforce the law, but is also charged with the general duty and power to maintain the peace and quiet of the city.
[1] The parties agreed that these instructions correctly state the law. The Tharps contend that under these instructions they were entitled to a directed verdict on the issue of whether Sgt. Pillon had probable cause to arrest the Tharps for obstructing a public officer. They insist that the matter between the Mikes and the Tharps was a civil dispute only and therefore the police had no authority to arrest.
A motion for a directed verdict admits the truth of the evidence of the party against whom the motion is made and all inferences that reasonably can be drawn therefrom. In addition, such a motion ... requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party ... [T]he trial court can grant such a motion only when it can be held as a matter of law that there is no evidence, nor reasonable inference from the evidence, to sustain the verdict.
Reiboldt v. Bedient, 17 Wn. App. 339, 344, 562 P.2d 991 (1977); Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 890, 568 P.2d 764 (1977).
*6 The evidence, in the light most favorable to the City, shows that police were called to the scene of a landlord-tenant dispute by each party at least once. A small crowd, including relatives of the Mikes, had gathered in the street. Fritz Tharp, who had sought police intervention, was locked inside the house, refusing to allow the Mikes to enter and remove their property. Sgt. Pillon tried to talk Fritz into giving the Mikes their property, but Fritz was uncooperative and insolent. Then Fritz' father was called; he would not tell his son to open the house and very angrily stated that he was coming out to the scene. Pillon testified that based on his experience there was a substantial likelihood of a fight breaking out between the two families.
[2] When police are called to the scene of a dispute which appears likely to erupt in violence, they are empowered to arrest those who attempt to breach the peace. Pavish v. Meyers, 129 Wash. 605, 607, 225 P. 633, 34 A.L.R. 561 (1924); 12 Am.Jur.2d Breach of Peace & Disorderly Conduct § 4 (1964); 6A C.J.S. Arrest § 20(b) (1975). However, this is not the only option the police have; they may take other steps as are appropriate and reasonable to preserve the peace of the community. One of those steps may be an attempt to reconcile the parties or at least restore calm in hopes of averting an arrest. If one party persists in prolonging the dispute and is the obvious belligerent, the police may arrest him for obstructing them in the performance of their duty.
Having concluded that obstructing a public officer was a chargeable offense in this instance, and that there was sufficient evidence from which a jury might find that the police had probable cause to arrest the Tharps for this offense, it was proper for this court to deny the Tharps' motion for a directed verdict and to send the case to a jury. See Sennett v. Zimmerman, 50 Wn.2d 649, 314 P.2d 414 (1957). State v. Vangen, 72 Wn.2d 548, 433 P.2d 691 (1967); Smith v. Drew, 175 Wash. 11, 26 P.2d 1040 (1933).
*7 [3] Furthermore, the court did not abuse its discretion in rejecting the Tharps' proposed jury instructions[1] relating to breach of the peace and obstructing a public officer. The court's instructions, set forth above, contain the substance of the refused instructions, adequately and correctly state the law, and were sufficient to allow plaintiffs to argue their specific theories to the jury. No more is required. Shea v. Spokane, 17 Wn. App. 236, 245-46, 562 P.2d 264 (1977); see 2 L. Orland, Wash. Prac. § 253 (1972). We also note that general instructions are preferred over specific instructions. State v. Bradley, 20 Wn. App. 340, 581 P.2d 1053 (1978).
Plaintiffs next urge that the trial court erred in instructing the jury that
Fred Tharp and Fritz Tharp had no legal right to enter into the house involved in this lawsuit nor any right to keep their tenants, the Mikes, from regaining possession of their personal property and that such conduct by the plaintiffs was a violation of the landlord tenant act, however, such conduct was not in and of itself a criminal violation.
[4] An issue in the case was whether the Mikes had abandoned their tenancy, giving the Tharps a right of entry and a right to retain personal property. RCW 59.18.150(2); RCW 59.18.130. The trial court ruled that there was no evidence that the Mikes intended to abandon the premises. *8 See 51C C.J.S. Landlord & Tenant § 125 (1968). "Abandonment ... involves an absolute relinquishment of premises by a tenant, and consists of act or omission and an intent to abandon." Tuschoff v. Westover, 65 Wn.2d 69, 73, 395 P.2d 630 (1964). "Abandonment must be proved by clear, unequivocal and decisive evidence." Shew v. Coon Bay Loafers, Inc., 76 Wn.2d 40, 50, 455 P.2d 359 (1969). We agree that there was no substantial evidence from which a jury could find that the Mikes had abandoned the premises. See Johnson v. Mobile Crane Co., 1 Wn. App. 642, 463 P.2d 250 (1969).[2]
[5] During the course of cross-examination of Fritz Tharp, counsel for the City elicited Fritz' admission that he let the air out of the tires of the Mikes' car while it was parked outside the house. Fritz attempted to explain that his action was based on advice from a police officer whom he consulted regarding the dispute with the Mikes. The court disallowed the explanation on the ground that it lacked relevance. Appellant asserts that the trial court was wrong and that the evidence was relevant to show (a) Fritz Tharp's state of mind, and (b) the "collective mind" of the *9 Seattle Police Department concerning their authority to settle landlord-tenant disputes. We agree with the trial court that the evidence was irrelevant because it does not tend to prove or disprove an issue in the case. See Lamborn v. Phillips Pac. Chem. Co., 89 Wn.2d 701, 706, 575 P.2d 215 (1978).
[6] Fritz Tharp's state of mind at the time he let the air out of the tires has no bearing on whether or not the Seattle police had probable cause to arrest him. The act was accomplished before the police arrived and did not enter into their decision to arrest. "Probable cause is based upon the totality of facts and circumstances within the knowledge of the arresting officer." State v. Cottrell, 86 Wn.2d 130, 132, 542 P.2d 771 (1975). Likewise, the opinions of other police officers or the collective opinion of the Seattle Police Department as to their duties in settling landlord-tenant disputes were not relevant to show whether Sgt. Pillon, the arresting officer, had probable cause. See State v. Todd, 78 Wn.2d 362, 365, 474 P.2d 542 (1970).
Similarly, the trial court properly refused to admit in evidence certain Seattle Police Department training bulletins which contained departmental suggestions for settling landlord-tenant disputes as well as a brief discussion of landlord-tenant law. The Tharps attempted to show that Sgt. Pillon exceeded police guidelines as set out in the bulletins. Whether he had or had not was not material to the issue of probable cause. Introduction of these bulletins could only have confused the jury as to the legal standards in the case. See generally Haysom v. Coleman Lantern Co., 89 Wn.2d 474, 573 P.2d 785 (1978).
In addition, we are asked to review the trial court's instruction regarding the burden of proof on the issue of probable cause to arrest. The trial court instructed the jury that probable cause was an affirmative defense and that the City had the burden of proving the facts essential to its defense. Counsel for the Tharps made no objection to these *10 instructions. Instead, he submitted his own instruction, which he regarded as "more appropriate."
[7] The trial court has considerable discretion in wording instructions. Levea v. G.A. Gray Corp., 17 Wn. App. 214, 562 P.2d 1276 (1977). Failing to object to an instruction and merely proposing a "more appropriate" alternate instruction does not adequately apprise the trial court of the issues involved and, therefore, waives any right to appeal. Stark v. Allis-Chalmers, 2 Wn. App. 399, 467 P.2d 854 (1970).
[8] Finally, we consider the propriety of the attorney's fees awarded in favor of the Mikes. Whether a fee is reasonable must be determined on a case-by-case basis and a purely mechanistic formula amounts to an abuse of discretion. Wolfe v. Morgan, 11 Wn. App. 738, 524 P.2d 927 (1974). A number of factors should be considered, including: (1) time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the amount or the values involved and the results obtained; (3) the fee customarily charged for similar legal services; and (4) the experience, reputation, and ability of the lawyer or lawyers performing the services. See State v. Mempa, 78 Wn.2d 530, 536, 477 P.2d 178 (1970); Key v. Cascade Packing Co., 19 Wn. App. 579, 585, 576 P.2d 929 (1978); (CPR) DR 2-106(B).
The judge before whom the legal services are performed is in a peculiarly advantageous position to consider and evaluate the factors involved, and his determination will not ordinarily be disturbed absent a manifest abuse of discretion.
State v. Mempa, supra at 536; Hsu Ying Li v. Tang, 87 Wn.2d 796, 801, 557 P.2d 342 (1976).
It is apparent from the amount of the award that the trial court did not accept counsel's time sheets and hourly rate as the sole criteria of reasonableness, but relied on factors such as those set forth above. Based on the record before us, we cannot say that no reasonable person would reach the result arrived at by the trial court. Consequently, *11 we hold that the award of $1,000 attorney's fees to the Mikes was not an abuse of discretion. In addition to attorney's fees awarded at trial, the Mikes also request attorney's fees on appeal. RAP 18.1(a) states that attorney's fees on appeal are available in those cases where "applicable law grants to a party the right to recover reasonable attorney's fees or expenses on review". (Italics ours.) The comments to the rule state that the rule applies when "reasonable attorney's fees are allowed by law or contract." RCW 59.18.290 allows attorney's fees for landlord-tenant actions, which inferentially includes attorney's fees on appeal. Such awards are discretionary under the statute. The appellate issue is minor, and we decline to award appellate attorney's fees in this case.
The judgment is affirmed in all respects.
FARRIS, C.J., and DORE, J., concur.
NOTES
[1]  Tharps' proposed instruction No. 9:

"You are instructed that a police officer has a general duty and power to maintain the peace and dignity of a community. However, a trespass, by a landlord, is, in and of itself, not a breach of the peace sufficient to amount to the crime of disturbance of the peace, but may be so if combined with other acts designed, or likely to lead to, a disturbance of the peace. It is the duty of a police officer, in preserving the peace and dignity of a community, to act against the party provoking or likely to cause a breach of the peace. Some affirmative act tending to lead to a breach of the peace is required before an officer may act."
Tharps' proposed instruction No. 10:
"There is no authority of a police officer to order a change of possession of property, failing which, a person may be guilty of hindering or obstructing an officer. A person may be guilty of hindering or obstructing an officer if he does some affirmative act preventing an officer from performing a lawful act."
[2]  The Tharps relied on the following evidence to prove abandonment:
    [THARP'S COUNSEL:] [Regarding a conversation held on March 1, 1975 in
                       which the Mikes stated they were broke] Did you
                       reach any agreement in regard to what would happen if
                       they couldn't get this extra money?
    [FRITZ THARP:]     Yes. At that time I says, "Well, tell you what. I'll
                       give you another couple days to extend yourself to try
                       to find out if you're going to get this money or not,
                       and, if you can't, just plan on being gone within a
                       couple weeks."
    [THARP'S COUNSEL:] Did they specifically agree in words or understand "a
                       couple of weeks"?
    [FRITZ THARP:]     They said, "Okay."
    [THARP'S COUNSEL:] Now, did anyone say, "Yes, we'll be out by the weekend
                       of the 14th" or whatever, which would have been a
                       couple of weeks?
    [FRITZ THARP:]     No, they didn't.
    [THARP'S COUNSEL:] Did you say "the 14th"?
    [FRITZ THARP:]     No, I didn't say it in particular.
    [THARP'S COUNSEL:] Is that what you understood it to be, though?
    [FRITZ THARP:]     Yes, I did.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 03-6212

JIMMY WESTFALL,

                                           Petitioner - Appellant,

          versus

WEST VIRGINIA PAROLE BOARD MEMBERS; DOUGLAS
STUMP, Chairman of Board; BOB WISE, Governor,
Chief Executive Officer,

                                          Respondents - Appellees.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CA-02-987-2-2)

Submitted:   July 7, 2003                  Decided:   July 28, 2003

Before LUTTIG, WILLIAMS, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jimmy Westfall, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Jimmy Westfall seeks to appeal the district court’s order

accepting the recommendation of the magistrate judge and dismissing

his petition under 28 U.S.C. § 2254 (2000).               An appeal may not be

taken from the final order in a habeas corpus proceeding unless a

circuit justice or judge issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not

issue for claims addressed by a district court on the merits absent

“a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2000). As to claims dismissed by a district

court solely on procedural grounds, a certificate of appealability

will not issue unless the petitioner can demonstrate both “(1)

‘that   jurists   of   reason   would       find   it   debatable   whether   the

petition states a valid claim of the denial of a constitutional

right’ and (2) ‘that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.’”

Rose v. Lee, 252 F.3d 676, 684 (4th Cir.) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)), cert. denied, 534 U.S. 941

(2001).   We have independently reviewed the record and conclude

that Westfall has not satisfied either standard.              See Miller-El v.

Cockrell, 537 U.S. 322,             , 123 S. Ct. 1029, 1039 (2003).

Accordingly, we deny a certificate of appealability and dismiss the

appeal. We dispense with oral argument because the facts and legal

                                        2
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           DISMISSED

                                3


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 08-8323

CLEVELAND WINSTON KILGORE,

                  Petitioner - Appellant,

             v.

DARLENE DREW, Warden; FEDERAL BUREAU OF PRISONS,

                  Respondents - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Henry F. Floyd, District Judge.
(9:08-cv-03200-HFF)

Submitted:    February 19, 2009         Decided:   February 26, 2009

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Cleveland Winston Kilgore, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Cleveland Winston Kilgore, a federal prisoner, appeals

the district court’s order accepting the recommendation of the

magistrate    judge   and   dismissing    without    prejudice   Kilgore’s

28 U.S.C. § 2241 (2006) petition.          We have reviewed the record

and find no reversible error.           Accordingly, we affirm for the

reasons stated by the district court.               Kilgore v. Drew, No.

9:08-cv-03200-HFF (D.S.C. Oct. 22, 2008).           We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                 AFFIRMED

                                    2


975 F.2d 1215
61 USLW 2182
PARK-OHIO INDUSTRIES, INC., and Tocco, Inc., Plaintiffs-Appellants,v.The HOME INDEMNITY COMPANY, Defendant-Appellee.
No. 91-3826.
United States Court of Appeals,Sixth Circuit.
Argued Aug. 14, 1992.Decided Sept. 22, 1992.Rehearing and Rehearing En BancDenied Nov. 9, 1992.

Marvin L. Karp (argued and briefed), Ulmer & Berne, Harold A. Madorsky, Cleveland, Ohio, for plaintiffs-appellants.
Steven G. Janik, David L. Lester (argued and briefed), Janik, Lester & Dunn, Cleveland, Ohio, for defendant-appellee.
Before:  MERRITT, Chief Judge;  and MILBURN and GUY, Circuit Judges.
MILBURN, Circuit Judge.

1
In this diversity action, plaintiffs Park-Ohio Industries, Inc.  ("Park-Ohio") and its wholly-owned subsidiary, Tocco, Inc.  ("Tocco"), appeal the district court's grant of summary judgment in favor of defendant Home Indemnity Co.  ("Home") in their action seeking a declaratory judgment that Home has a duty to defend and indemnify Tocco against all claims asserted against it in the ongoing litigation of Fleenor v. Goodyear Tire & Rubber Co., No. 15,705 (Morris Co., Texas), a product liability action for personal injury and wrongful death.   This is a case of first impression because this is the first time a court has addressed the issue of a pollution exclusion as it applies to an alleged defective product placed in the stream of commerce by one insured under a policy of insurance containing a pollution exclusion.

2
On appeal, the sole issue is whether the district court erred in granting summary judgment for Home by concluding that the "pollution exclusion" provision in the defendant's insurance policy precluded any obligation on the part of Home to defend or to pay any judgment rendered against plaintiffs in the Fleenor case.   For the reasons that follow, we affirm.  785 F.Supp. 670.I.

3
Plaintiff Park-Ohio purchased a comprehensive general liability policy from Home through Frank B. Hall & Co. of Ohio, Inc., effective February 1, 1988, to February 1, 1989.   This policy covered Park-Ohio and Tocco for damages arising from any defective product that they as insureds produced, subject to the terms, conditions, and exclusions contained in the policy.

4
The material facts are undisputed.   In January of 1989, William B. Fleenor and 47 other individuals instituted an action against Tocco and other entities alleging that certain induction furnaces manufactured by Tocco caused injuries, disabilities, and deaths to past and present employees of the Red River Army Depot in Bowie, Texas, where the Tocco furnaces were being used.1  The Fleenor plaintiffs claim that Tocco's furnaces, used to strip and burn rubber from the metal tracks of army tanks and armored personnel and missile carriers, were defective, unreasonably dangerous, and not reasonably fit for their intended use.   Tocco's furnaces were used in a procedure, commonly referred to as the rubber de-nuding process, which is "designed and intended to break the bond between the rubber tread and metal components of the tracks of the tanks and armored personnel and missile carriers."   J.A. 136.   The tracks of these "vehicles were reassembled with rubber tread being molded back onto the metal components" at the depot.   Id.  In addition, the employees of the rubber branch rebuild road wheels.   Id.  The Fleenor plaintiffs charge in relevant part that

5
[d]uring all of these operations, certain rubber combustion products resembling soot, smoke, fumes, dust pollutants and other particulates, evolve from the incomplete combustion of organic materials.   These rubber combustion products contain compounds called polynuclear aromatic hydrocarbons including coal tar pitch volatiles and Benzo[a]pyrene which are carcinogenic agents.

6
The burning of rubber released these hazardous, dangerous and carcinogenic agents into the atmosphere which were then breathed, inhaled, absorbed or otherwise ingested by the "workers" employed in the rubber branch section.   Nineteen (19) of the "workers" have died or presently are suffering from cancer as a result of exposure to these carcinogenic agents.   Many more of the "workers" have suffered from a myriad of respiratory problems as a result of exposure to the carcinogenic agents.

7
*   *   *   *   *   *

8
Plaintiffs would further show that Defendants breached express and implied warranties in that their products were not merchantable nor reasonably fit for their intended use.   To the contrary, the heat systems were unmerchantable and unfit and Defendants' breach of the warranties, express and implied, proximately caused the injuries, disabilities or deaths of the "workers" and the Plaintiffs' resulting damages.

9
J.A. 136, 137, 143.

10
Park-Ohio and Tocco notified Home of the Fleenor action;  however, Home informed plaintiffs in a letter dated October 26, 1989, that it would not defend Tocco in the Fleenor action or indemnify Tocco for any damages awarded against Tocco.   Home based this determination on a "pollution exclusion" provision found in the insurance policy issued by Home to Park-Ohio.   The pollution exclusion states that the policy does not cover

11
... bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water.

12
J.A. 195.

13
Thereafter, on June 8, 1990, plaintiffs filed the present action in the district court.   Both plaintiffs and defendant filed motions for summary judgment, and on August 6, 1991, the district court granted defendant's motion and entered summary judgment for the defendant.   This timely appeal followed.

II.
A.

14
As earlier stated, the material facts in this case are not in dispute.   Thus, this appeal involves solely a question of law which this court reviews de novo.   See Brooks v. American Broadcasting Cos., Inc., 932 F.2d 495, 500 (6th Cir.1991).   See also Salve Regina College v. Russell, --- U.S. ----, ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991) (a district court's interpretation of state law is reviewed de novo).

15
The parties agree that the applicable law in this case is Ohio law.   In applying Ohio law, the district court determined that the pollution exclusion in issue is clear and unambiguous, and, according to Ohio rules of construction, the insurance policy precludes coverage for the injuries alleged by the Fleenor plaintiffs.   The district court further concluded that where exclusion of coverage under an insurance policy is clear, then under Ohio law the insurer has no duty to defend the insured in an action against the insured.

16
The district court also rejected the conclusion of a Minnesota court in a case the district court considered to be "directly on point" because the Minnesota court applied the reasonable expectation doctrine in determining that the pollution exclusion at issue did not preclude coverage for the insured.   See Grinnel Mut. Reinsurance Co. v. Wasmuth, 432 N.W.2d 495 (Minn.App.1988).   In this case, the district court determined under Sterling Merchandise Co. v. Hartford Ins. Co., 30 Ohio App.3d 131, 506 N.E.2d 1192, 1196-97 (1986), that the reasonable expectation doctrine does not apply in Ohio, and, according to Ohio's rules of construction, the pollution exclusion precluded coverage.   We agree.

B.

17
In Ohio, an insurance policy is a contract, and the parties' rights under the policy are purely contractual in nature.  Nationwide Mut. Ins. Co. v. Marsh, 15 Ohio St.3d 107, 472 N.E.2d 1061, 1062 (1984) (per curiam).   Both parties agree that under Ohio law, where a provision excluding coverage in an insurance policy is clear and unambiguous, the plain language of the exclusion provision applies.   See Moorman v. Prudential Ins. Co. of Am., 4 Ohio St.3d 20, 445 N.E.2d 1122, 1124 (1983) (per curiam);  United States v. A.C. Strip, 868 F.2d 181, 185 (6th Cir.1989).   Moreover, both parties also agree that where a provision is ambiguous, the provision is interpreted in favor of the insured.  Id.  In this case, the primary dispute is whether an ambiguity exists in the pollution exclusion in question.

18
As plaintiffs correctly assert, the burden is on the insurer to prove that a particular claim is precluded by an exclusion provision.  State Farm Fire & Casualty Co. v. Hiermer, 720 F.Supp. 1310, 1314 (S.D.Ohio 1988), aff'd, 884 F.2d 580 (6th Cir.1989) (unpublished);  see also Moorman, 445 N.E.2d at 1124 ("[W]here exceptions ... are introduced into an insurance contract, a general presumption arises to the effect that that which is not clearly excluded from the operation of such contract is included in the operation thereof.").

19
In this case, plaintiffs argue that defendant has failed to meet its burden.   According to plaintiffs, the pollution exclusion possesses a latent ambiguity which becomes visible when the pollution exclusion is applied to the specific facts in this case.

20
Pollution exclusions like the one at issue are common in the insurance industry today.   See, e.g., Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118 (2d Cir.1990);  Perkins Hardware Lumber Co. v. Bituminous Casualty Corp., 190 Ga.App. 231, 378 S.E.2d 407 (1989);  League of Minnesota Cities Ins. Trust v. City of Coon Rapids, 446 N.W.2d 419 (Minn.App.1989).

21
Plaintiffs argue that it is unclear whether the pollution exclusion in this case should apply in products liability cases where the insured (1) was not actively engaged in the discharge of the pollutants at issue or (2) did not discharge the pollutants on its premises.   According to plaintiffs, the pollution exclusion is clear and unambiguous only in those situations where the insured was actively engaged in polluting, e.g., an oil tanker dumping oil in the ocean, or where the discharge occurred on the premises of the insured, e.g., a chemical company emitting toxins into the air from its plant.   Plaintiffs contend that because Tocco was neither engaged in actively discharging the pollutants at issue in the Fleenor litigation nor did the discharge occur on Tocco's premises, an ambiguity exists as to the application of the pollution exclusion in this case.   Thus, plaintiffs argue that under the Ohio rule of construction, ambiguities are resolved in favor of the insured, and, therefore, the Home policy must provide coverage to plaintiffs for the injuries alleged in the Fleenor litigation.

22
Plaintiffs rely on two Ohio cases for the proposition that Ohio recognizes the concept of latent ambiguities.   In Drage v. Mantifel, 49 Ohio App.3d 63, 550 N.E.2d 183, 187 (1988), the court determined that an insurance policy providing coverage to the insureds for injuries inflicted by a "hit and run" driver was ambiguous as applied to the facts in that case.  Id. 550 N.E.2d at 187.   In Mantifel, the insureds were injured when their vehicle was struck by another vehicle which had been forced into them by a third, "hit and run" vehicle.   The policy defined a "hit and run" vehicle as a "vehicle which causes bodily injury to a person injured by physical contact with the insured or with a vehicle occupied by that person."  Id. at 185.   The court found that this definition was ambiguous as it applied to the indirect contact made by the third vehicle and construed the policy in favor of the insured.  Id. at 187.

23
In Moorman, 445 N.E.2d at 1122, the plaintiff, who was insured under a major medical policy containing an exclusion provision denying coverage for "any treatment of the teeth," had several teeth crowned as part of her treatment for temporomandibular joint syndrome (TMJ), a misalignment of a joint located in the jaw.   Because the teeth were crowned to correct a mispositioned jaw joint, a medical condition undisputedly covered by the policy, the court held that it was not clear whether the crowned teeth constituted treatment of the teeth or treatment of the jaw.  Id. at 1124-25.   Thus, the court held the exclusion provision was ambiguous and construed the policy in favor of the insured.  Id.

24
While these cases illustrate that Ohio embraces the concept of latent ambiguities in an insurance contract, they do not support plaintiffs' argument that a latent ambiguity exists in this case.   In the present case, the exclusionary provision precludes coverage for "the discharge, dispersal, release or escape of smoke, vapors, soot, fumes...."  J.A. 195.   The Fleenor plaintiffs allege they were injured by "certain rubber combustion products resembling soot, smoke, fumes, dust pollutants and other particulates" which were "released" into the atmosphere.   J.A. 136, 137.   There is no ambiguity in this situation.   The pollution exclusion places no limitation on how the discharge is to be made or by whom.  "The discharge" applies to any discharge, and there is nothing in the facts of this case which bring into question the meaning of "the discharge" or who must make the discharge.   In a sense, the pollution exclusion follows the product, as do all the terms of the policy.

25
Nevertheless, plaintiffs cite cases from other jurisdictions in support of their argument that a latent ambiguity exists in this case.   According to plaintiffs, several other jurisdictions have interpreted virtually identical pollution exclusion provisions to apply only where the insured was actively engaged in polluting or where the pollution activities took place on the insured's premises.   Plaintiffs also rely on an Ohio case to argue that because other jurisdictions have given a different interpretation to virtually identical pollution exclusion provisions, then the exclusion at issue in this case is ambiguous as a matter of law.   In Equitable Life Ins. Co. of Iowa v. Gerwick, 50 Ohio App. 277, 197 N.E. 923, 925 (1934), a case involving an insurance policy providing coverage for "permanent and total" disability, the court stated that

26
[w]here the language of a clause used in an insurance contract is such that courts of numerous jurisdictions have found it necessary to construe it and in such construction have arrived at conflicting conclusions as to the correct meaning, intent, and effect thereof, the question whether such clause is ambiguous ceases to be an open one.

27
To the extent that Equitable Life Ins. Co. held that a contract provision is ambiguous as a matter of law if other jurisdictions have interpreted similar provisions differently, that case, in our view, does not state the present law in Ohio.   The Supreme Court of Ohio has held that "[w]hen the language of an insurance policy has a plain and ordinary meaning, it is unnecessary and impermissible for this court to resort to construction of that language."  Karabin v. State Auto. Mut. Ins. Co., 10 Ohio St.3d 163, 462 N.E.2d 403, 406 (1984).   If we were to accept plaintiffs' argument that a contract provision is ambiguous as a matter of law because other jurisdictions have chosen to apply a provision differently, then we would be rejecting a well-settled Ohio rule of construction to apply the plain language of the contract where that language is clear and unambiguous.

28
Plaintiffs also argue that the purpose behind the pollution exclusion supports their contention that the pollution exclusion should not apply in this case and rely on Autotronic Systems, Inc. v. Aetna Life & Casualty, 89 A.D.2d 401, 456 N.Y.S.2d 504 (3d Dep't N.Y.App.Div.1982).   In Autotronic, the plaintiff had designed, manufactured, constructed, and installed a self-service gasoline filling station for a station operator.   Several years later, an employee of the filling station sued the plaintiff alleging that due to the plaintiff's negligent design and construction of the filling station, she had suffered permanent injuries from exposure to toxic substances in the leaded gasoline sold at the station.   The plaintiff's insurance carrier disclaimed coverage based on an exclusionary provision almost identical to the one in the present case.   The Autotronic court held that the exclusionary provision did not apply to the plaintiff because to hold otherwise would be contrary to the purpose of the exclusion provision.  Id. 456 N.Y.S.2d at 505-06.   The court held that

29
[t]he clear purpose of the statutorily required exclusion is to strengthen New York's environmental protection standards by imposing the full risk of loss due to personal injury or property damage from pollution upon the commercial or industrial enterprise that does the polluting....

30
*   *   *   *   *   *

31
Plaintiff herein is not the actual corporate polluter to which the statutory exclusion was intended to apply.   The pollution-causing commercial activity that is the subject of the underlying tort action is the day-to-day operation of the gasoline filling station, an activity in which plaintiff was not involved, either directly or indirectly.

32
Id.

33
Based on Autotronic, plaintiffs argue that the purpose of the pollution exclusion in this case is also to strengthen environmental laws by excluding from coverage only those who "actively" pollute.   Therefore, plaintiffs reason that because they did not "actively" pollute, the pollution exclusion was not meant to apply to them.

34
Autotronic is clearly distinguishable from this case.   First, the Autotronic court was examining a pollution exclusion which was required by state law to appear in insurance contracts.  Id.  In determining the purpose of the pollution exclusion, the court examined the New York State Legislature's intent in mandating the provision.  Id. 456 N.Y.S.2d at 506.   However, in this case, there is no evidence that the pollution exclusion was statutorily required nor do plaintiffs make this argument.   In this connection, simply because the New York Legislature might have had one purpose in using a particular provision does not mean private parties had the same intention in using a similar provision.

35
Second, Autotronic's approach to the statutorily mandated pollution exclusion has been rejected by the Second Department, New York Appellate Division and by the New York Court of Appeals.   In Powers Chemco, Inc. v. Federal Insurance Co., 144 A.D.2d 445, 533 N.Y.S.2d 1010 (2d Dep't 1988) (per curiam), aff'd, 74 N.Y.2d 910, 549 N.Y.S.2d 650, 548 N.E.2d 1301 (1989), the plaintiff purchased a parcel of land and later discovered that the property contained hazardous materials which required cleanup.   The plaintiff sought a declaratory judgment that its insurer was required to indemnify it for the clean-up costs regardless of the statutorily mandated pollution exclusion.   The court found that the pollution exclusion did preclude coverage stating,

36
[w]e decline to follow the holding in Autotronic....  The clear and unambiguous language of the pollution exclusion makes no exception for pollution caused by someone other than the insured where that pollution is not "sudden and accidental".2

37
Id. 533 N.Y.S.2d at 1012.

38
The New York Court of Appeals affirmed the Appellate Division's decision in Powers Chemco, Inc. v. Federal Ins. Co., 74 N.Y.2d 910, 549 N.Y.S.2d 650, 548 N.E.2d 1301 (1989) (per curiam).   In doing so, the New York Court of Appeals stated that

39
[w]e ... reject plaintiff's contention that since it was not the actual polluter, but merely inherited the problem from the prior landowner, the pollution exclusion clause cannot bar its present insurance claim.   Simply put, there is nothing in the language of the pollution exclusion clause to suggest that it is not applicable when liability is premised on the conduct of someone other than the insured.

40
Id.  See also State of New York v. Amro Realty Corp., 745 F.Supp. 832, 839 (N.D.N.Y.1990) ("It is clear that New York law requires courts to focus on the type of pollution occurrence alleged as opposed to the culpability of the insured.")  (emphasis in original).

41
Plaintiffs also rely upon United States Fidelity and Guaranty Co. v. Special Coatings Co., 180 Ill.App.3d 378, 129 Ill.Dec. 306, 311, 535 N.E.2d 1071, 1076 (1989), in which the court held that a pollution exclusion almost identical to the one in issue in this case was ambiguous.   In Special Coatings, an insurance company sought a declaratory judgment that it had no duty to defend or indemnify an insured in an action brought under Illinois law alleging that the insured arranged for the disposal of its hazardous waste by a company which later improperly disposed of the waste.   Under the Illinois Environmental Protection Act, Ill.Rev.Stat. Ch. 111 1/2, pars. 1012, 1021, a party who arranges for the disposal of its hazardous waste by another can be held strictly liable for clean-up costs where the waste is disposed of improperly.   Mindful of this strict liability, the court stated

42
[c]ertainly, those engaged in manufacturing processes would be expected to have sought other or additional insurance had they known that the mere act of engaging an independent agency such as a waste disposal in the ordinary course of having industrial wastes removed from their property would result in the denial of insurance coverage.

43
Id.

44
Similarly, in Molton, Allen and Williams, Inc. v. St. Paul Fire and Marine Ins. Co., 347 So.2d 95, 99 (Ala.1977), the court held that a pollution exclusion did not preclude coverage for the insured.   The insured was a defendant in an action brought by a group of landowners who alleged that the insured, a real estate developer, had negligently caused sand and dirt to be deposited on their property.   In refusing to apply the pollution exclusion, the court stated

45
[t]he pollution exclusion was no doubt designed to decrease the risk where an insured was putting smoke, vapors, soot, ... irritants, contaminants or pollutants into the environment.

46
Id.3 (emphasis added).

47
On the other hand, like the Powers Chemco courts, other courts have refused to accept the view that the pollution exclusion applies only where the insured was an active and immediate participant in the pollution activity at issue.   In Northern Ins. Co. of New York v. Aardvark Associates, Inc., 942 F.2d 189 (3d Cir.1991), the Third Circuit explicitly rejected the notion that the pollution exclusion exception is limited to active as opposed to passive polluters.  Id. at 194.   In Northern Ins. Co., the insured hauled industrial waste created by other companies to disposal sites.   When the Environmental Protection Agency began cleanup of these sites, it sought clean-up costs from the insured.   The insured argued that because it did not produce the hazardous waste at issue, it was a "passive" polluter and that the pollution exclusion clause did not apply to passive polluters.   The Third Circuit rejected this argument stating

48
[w]e have scrutinized this language [of the pollution exclusion] for any hint that it is limited to "active" polluters or those who "actually release pollutants," but we find no ambiguity and no support for [insured's] argument.   The clause unambiguously withholds coverage for injury or damage "arising out of the discharge, dispersal, release or escape" of pollutants, not merely the insured's discharge, dispersal, release or escape "of pollutants."

49
Id. at 194 (emphasis in original).

50
Likewise, in  Federal Ins. Co. v. Susquehanna Broadcasting Co., 727 F.Supp. 169, 177 (M.D.Pa.1989), modified in part on other grounds, 738 F.Supp. 896 (M.D.Pa.1990), aff'd, 928 F.2d 1131 (3d Cir.)  (Table), cert. denied, --- U.S. ----, 112 S.Ct. 86, 116 L.Ed.2d 58 (1991), the court reached the same conclusion.   In Susquehanna Broadcasting Co., the insurer brought an action seeking a declaratory judgment that it had no duty to the insured to indemnify it for costs incurred in cleaning up a hazardous waste disposal site.   The insured, who had hired an individual to haul and dispose of its wastes, argued that it was not an active polluter and that the pollution exclusion was ambiguous as applied to parties who were not active polluters.   Based on this premise, the insured argued that the pollution exclusion should be strictly construed against the insured.   The court flatly rejected this argument stating, "[t]he pollution exclusion makes no reference at all to active polluters or passive polluters."   Id. at 177.4   See also United States Fidelity & Guar. Co. v. Murray Ohio Mfg. Co., 693 F.Supp. 617, 621 (M.D.Tenn.1988), aff'd, 875 F.2d 868 (6th Cir.1989) (the "common sense meaning" of the pollution exclusion contains no distinction between "active" and passive polluters), aff'd, 875 F.2d 868 (6th Cir.1989) (Table).

51
We hold that the analysis followed by the Powers Chemco courts, the Northern Ins. Co. court and the Susquehanna Broadcasting Co. court is the correct analysis in this case.   In each of those cases, the courts declined to look outside the clear and plain language of the pollution exclusion.   Moreover, this approach is also the analysis mandated by the rules of contract construction under Ohio law.

C.

52
Plaintiffs next argue that the district court erred in rejecting the reasonable expectation doctrine.   In their first brief, plaintiffs state that we are bound only by the decisions of the Supreme Court of Ohio and that if there is no controlling law on the issue at hand, it is our duty to ascertain how the Supreme Court of Ohio would resolve the same issue now before us.   Plaintiffs further argue that if the Supreme Court of Ohio did consider the reasonable expectation doctrine, it would embrace the doctrine.   In support of this argument, plaintiffs state:

53
The pole star of insurance contract interpretation in Ohio is that if a policy clause is ambiguous, Ohio courts will adopt "any [objectively] reasonable interpretation ... in favor of the insured.  Gomolka v. State Auto Mutual Ins. Co., 70 Ohio St.2d 166, 168, 436 N.E.2d 1347, 1348 (1982) (emphasis added).   Thus, where the insured has a reasonable expectation of coverage, based entirely upon a "reasonable interpretation of the [ambiguous] policy," Ohio courts have adopted the insured's interpretation.  River Services Co. v. Hartford Acc. & Indem. Co., 449 F.Supp. 622, 626 (N.D.Ohio 1977).   Consequently, there is no difference in substance between the Ohio rule of construction and the reasonable expectations doctrine as it has come to be applied in a majority of jurisdictions.

54
Appellants' Reply Brief at 9.

55
This argument is essentially a recapitulation of plaintiffs' meritless argument that because the pollution exclusion is ambiguous as applied to the facts in this case, the exclusion must be interpreted in favor of the insured.   Under the reasonable expectation doctrine, "the reasonable expectation of the insured may be given effect even if careful examination of the policy provision would negate that expectation."  Grinnel Mut. Reinsurance Co. v. Wasmuth, 432 N.W.2d 495, 499 (Minn.App.1988).   Moreover, as the district court correctly concluded, Ohio has rejected the reasonable expectation doctrine.

56
In Sterling Merchandise Co. v. Hartford Ins. Co., 30 Ohio App.3d 131, 506 N.E.2d 1192, 1197 (1986), the court stated that

57
the reasonable expectation doctrine requires a court to rewrite an insurance contract which does not meet popular expectations.   Such rewriting is done regardless of the bargain entered into by the parties to the contract.   Such judicial activism has not been adopted in Ohio by its courts and the courts' use of the liberal rules of construction.   Further, this court declines to do so.

58
Although Sterling is not a decision by the Supreme Court of Ohio, Sterling is persuasive when considered in conjunction with well-settled Ohio rules of construction.   See also Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble, 924 F.2d 633, 639-40, n. 8 (7th Cir.1991) ("The reasonable expectations doctrine has been soundly rejected by Ohio courts....").  Accordingly, we believe that if the Supreme Court of Ohio were faced with the same issue as we are today, it would reject the reasonable expectation doctrine.

D.

59
Plaintiffs also argue that the pollution exclusion in this case does not preclude coverage by Home because the Fleenor plaintiffs' claim against them asserts liability on the basis of "selling and manufacturing a defective product."   According to plaintiffs, this claim is separate and distinct from the discharge of pollutants and thus is not excused by the pollution exclusion.   This argument appears to be one of semantics.   As the district court determined, regardless of how one characterizes the plaintiffs' claims, the manufacturing defect allegedly resulted in the discharge of pollutants, and the pollution exclusion provision precludes coverage for this activity.   Just as we refuse to inject an active versus passive distinction into the clear language of the pollution exclusion, we likewise refuse to inject a defect versus discharge distinction into the pollution exclusion in this case.

E.

60
Finally, the district court was correct in determining that Home has no duty to defend Tocco in the Fleenor litigation. Under Ohio law, where it is clear, as it is in this case, that an insurance policy does not provide coverage for claims alleged against the insured, the insurer has no duty to defend the insured against those claims.   See Zanco, Inc. v. Michigan Mut. Ins. Co., 11 Ohio St.3d 114, 464 N.E.2d 513 (1984) (per curiam);  see also Reliable Springs Co. v. St. Paul Fire & Marine Ins. Co., 869 F.2d 993, 995 (6th Cir.1989).

III.

61
For the reasons stated, the summary judgment of the district court is AFFIRMED.

62
RALPH B. GUY, Jr., Circuit Judge, dissenting.

63
Although the case is a close one, I agree with Park-Ohio's characterization of the Fleenor action.   The Fleenor complaint does not allege that Tocco's furnaces themselves created any pollution.   Instead, the lawsuit alleges, inter alia, that Tocco is liable because Tocco knew that the depot would use the furnaces to burn rubber and Tocco failed to warn the workers about the hazards of burning rubber.1

64
I am aware of only three published decisions that have involved attempts to apply the pollution exclusion in similar contexts.   In each of the three cases, the court refused to apply the pollution exclusion to claims against an insured who no longer controlled its product.   In Autotronic, 456 N.Y.S.2d 504, the plaintiff-employee alleged that the insured was liable for negligently building the service station, while the actual polluting activity was the day-to-day operation of the service station.  Id. at 506.

65
In Grinnell Mutual Reinsurance Co. v. Wasmuth, 432 N.W.2d 495 (Minn.Ct.App.1988), the insured had installed home insulation that allegedly emitted irritating vapors.   The court concluded that the insured would reasonably expect the pollution exclusion to limit coverage for activities such as hazardous waste dumping, not for installing building materials in a home.  Id. at 499.

66
Finally, in Continental Casualty Co. v. Rapid-American Corp., 177 A.D.2d 61, 581 N.Y.S.2d 669 (1992), the court held that the pollution exclusion could not be used to exclude product liability claims against the insured asbestos manufacturer.   The court concluded that the pollution exclusion did not "embrace the harm inflicted by a product fully and finally launched into the stream of commerce, and over which the manufacturer no longer exercises any control."  Id. 581 N.Y.S.2d at 673.

67
I find the reasoning of these cases persuasive.   Home's reading of the pollution exclusion would allow insurers to avoid defending any product liability case that fortuitously involves smoke, soot, fumes, liquids, or vapors.   For example, under Home's reading, the pollution exclusion would deny coverage to an automobile manufacturer for claims brought by motorists who had been injured, while in an automobile, by fumes from a defective exhaust system.

68
The title and the language of the exclusion belie such a reading.   The title indicates that the exclusion applies only to "pollution," not to every claim involving smoke or fumes.   The last clause of the exclusion states that the exclusion applies only to emissions "into or upon land, the atmosphere or any water course or body of water."   This language suggests that the exclusion applies to damage done by the release of pollutants into the environment, not to the type of location exposure at issue in the Fleenor lawsuit and in Autotronic, Wasmuth, and Rapid-American.

69
Even if I did not find the exclusion to be ambiguous as applied to the Fleenor action, the fact that courts from other jurisdictions have found the exclusion to be ambiguous in analogous contexts would compel me to reverse the judgment for Home.   The Ohio Court of Appeals has explained:

70
Where the language of a clause used in an insurance contract is such that courts of numerous jurisdictions have found it necessary to construe it and in such construction have arrived at conflicting conclusions as to the correct meaning, intent, and effect thereof, the question whether such clause is ambiguous ceases to be an open one.

71
Equitable Life Ins. Co. v. Gerwick, 50 Ohio App. 277, 197 N.E. 923, 925 (1934);  see also George H. Olmsted & Co. v. Metropolitan Life Ins. Co., 118 Ohio St. 421, 161 N.E. 276, 277-78 (1928).

72
I conclude both from the language of the pollution exclusion and from the decisions of courts in other jurisdictions that the exclusion is ambiguous as applied to the Fleenor action.   Since Ohio law requires that ambiguities be strictly construed against the insurer, I would reverse the grant of summary judgment for Home and remand for further proceedings.2

1
 The original action was filed June 24, 1988, but Tocco was not named as defendant until the complaint was first amended in January of 1989.   Park-Ohio is not a party to the Fleenor action

2
 The pollution exclusion in Powers Chemco included a provision providing for coverage where the discharge of pollutants was "sudden and accidental."   However, the Powers Chemco court determined that the "sudden and accidental" provision did not apply to the facts in that case.  Id. 533 N.Y.S.2d at 1011.   There is no "sudden and accidental" provision in the pollution exclusion at issue in this case

3
 The Molton court also held in the alternative that the pollution exclusion was ambiguous as applied to dirt and sand.   It simply was unclear whether dirt or sand was an irritant, contaminant, or pollutant as enumerated in the pollution exclusion.  Id. at 99.   Thus, the court strictly construed the pollution exclusion against the drafter, the insurance company, and found that the pollution exclusion did not apply.  Id

4
 The district court in Susquehanna Broadcasting Co. held that the insured did have a duty to indemnify on grounds unrelated to the issue in the present case

1
 The Fleenor complaint alleges that Tocco and three other defendants manufactured induction furnaces that were used in the rubber denuding process.   The plaintiffs allege that the furnace manufacturers are liable because the
furnaces in question were defective, unreasonably dangerous and not reasonably fit for their intended use ... and that Defendants failed to adequately warn the "workers" ... of the risks known to Defendants in association with the use of the furnaces....  [D]efendants failed to give adequate warning, training, or other instructional information concerning the emission into the atmosphere of soot, smoke, fumes, dust and other particulates, known or such that should have been known ... to be carcinogenic and hazardous to the "workers' " health....  [T]he introduction into the stream of commerce of a defective product ... and the failure to warn ... rendered the furnaces unreasonably dangerous at the time it left Defendants' possession....
(Emphasis added).

2
 At a minimum, I would conclude that the summary judgment was premature.   Plaintiffs, as plaintiffs often do in product liability cases, have pleaded very broadly.   Until discovery forces them to elect what horse they intend to ride, I feel the insurance company has, at least, a duty to defend, even if it elects to do so under a reservation of rights


345 F.Supp.2d 508 (2004)
Pasquale SCARAMUZZA, Plaintiff,
v.
Anthony J. SCIOLLA, Jr. and Jaffe, Friedman, Schuman, Sciolla & Applebaum, P.C., Defendants.
Civil Action No. 04-CV-1270.
United States District Court, E.D. Pennsylvania.
November 23, 2004.
Edward E. Kopko, Attorney at Law, Ithaca, NY, for Plaintiff.
Jeffrey B. Mccarron, Swartz Campbell & Detweiler, Philadelphia, PA, for Defendant.

MEMORANDUM
BAYLSON, District Judge.
Pasquale Scaramuzza ("plaintiff) filed the pending complaint on March 24, 2004 (Doc. No. 1). Plaintiff brings one count of legal malpractice against Anthony J. Sciolla, Jr., Esquire and two counts (legal malpractice and respondeat superior) against the law firm of Jaffe, Friedman, Schuman, Sciolla & Applebaum, P.C. (with Mr. Sciolla, "defendants"). On June 8, 2004, defendants joined Personal Surplus Line Inc. as a third-party defendant (Doc. No. 6). On September 14, 2004 this Court dismissed the third-party complaint (Doc. No. 11) against Personal Surplus Line Inc.
Presently before the Court is defendants' Motion to Dismiss (Doc. No. 14). For the reasons set forth below, that Motion will be denied.

I. Jurisdiction
The Court has jurisdiction over this complaint pursuant to 28 U.S.C. § 1332(a)(1). Plaintiff is a resident of Florida. (Scaramuzza Compl. ¶ 1.) Defendants are residents of Pennsylvania. (Id. at 1.) The amount in controversy exceeds $75,000. (Id.) Venue is appropriate under 28 U.S.C. § 1391(a).
*509 This diversity action is governed by substantive Pennsylvania state law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). When ascertaining Pennsylvania law, the decisions of the Pennsylvania Supreme Court are the authoritative source. See State Farm Mut. Auto. Ins. Co. v. Coviello, 233 F.3d 710, 713 (3d Cir.2000). If the Pennsylvania Supreme Court has not yet passed on an issue, then this Court will consider the pronouncements of the lower state courts. See id.

II. Discussion
In the motion to dismiss presently before the Court, defendants assert that the complaint should be dismissed because the plaintiff failed to file a certificate of merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3. Rule 1042.3 provides:
In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney.[1]
It is undisputed that plaintiff did not file a certificate of merit within sixty days of filing the complaint; indeed, plaintiff did not file a certificate of merit until plaintiff responded to the motion to dismiss on November 3, 2004.[2] In deciding the present motion, this Court must address two issues in turn: 1) whether the Pennsylvania certificate of merit rule is applicable in a federal court sitting in diversity; and 2) whether the application of the rule requires dismissal with prejudice of the pending complaint.

A. Applicability in Federal Court of the Pennsylvania Certificate of Merit Rule
The Third Circuit recently took up a similar issue and concluded that the New Jersey affidavit of merit statute[3]which is analogous to the Pennsylvania certificate of merit ruleand concluded that the statute does not collide with the Federal Rules of Civil Procedure and therefore must be applied as substantive state law by federal courts sitting in diversity. Chamberlain v. *510 Giampapa, 210 F.3d 154, 158-61 (3d Cir. 2000) (analyzing the New Jersey affidavit of merit statute within the framework of Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) and Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Affidavit of merit (or similar) statutes have been applied as substantive state law in numerous other federal courts as well. See Chamberlain, 210 F.3d at 160 n. 5. Our research has shown that neither the Third Circuit nor any court in this District has specifically addressed whether Pennsylvania's certificate of merit rule should likewise be applied.[4] However, the Pennsylvania rule is similar to the New Jersey statute in both its language and operation, and the Hanna analysis undertaken by the Third Circuit in Chamberlain should apply equally to the Pennsylvania rule.[5] Thus, for the purposes of the pending Motion to Dismiss, the Pennsylvania certificate of merit rule will be applied by this Court as controlling, substantive state law.

B. The Effect of the Certificate of Merit Rule on Plaintiffs Complaint
As noted above, it is undisputed that plaintiff did not file a certificate of merit with the Court within sixty days of filing the complaint, as is required by the Pennsylvania rule. Defendants argue that the plaintiffs failure to file a certificate of merit in a timely fashion compels dismissal of the complaint with prejudice. Although the Court believes the sixty-day time limit is binding on a plaintiff, the defendant in this case has not shown prejudice from the delay, and the Court will not dismiss the complaint.
Defendants correctly rely on Chamberlain as support for the proposition that the certificate of merit requirement is substantive law that must be applied by this Court (see supra). However, defendants err in their assertion that Chamberlain, as it applies to the Pennsylvania rule, demands that the complaint be dismissed with prejudice. Although the New Jersey and Pennsylvania rules are analytically the same in terms of the Hanna analysis, supra, they differ in one very important respect that relates to the present motion to dismiss: the consequences of non-compliance are very different under the New Jersey statute and the Pennsylvania rule.
Failure to comply with the New Jersey statute results in dismissal of the complaint with prejudice. See Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 708 A.2d 401, 413 (1998) ("[A] dismissal for failure to comply with the [affidavit of merit] statute should be with prejudice in all but exceptional circumstances."). In Pennsylvania, however, the prothonotary enters a *511 judgment of non pros against a plaintiff when the certificate of merit is not filed within the required period of time. Koken v. Lederman, 840 A.2d 446, 448 (Pa. Comwlth.2003). Unlike dismissal with prejudice, the entry of judgment non pros is a default judgment that does not bar the plaintiff from commencing another suit upon the same cause of action. See Goodrich-Amram 2d 1037(a):7 (2003). Indeed, the Pennsylvania Rules of Civil Procedure expressly provide a mechanism for relief from a judgment of non pros in the form of Rule 3051 (entitled "Relief from Judgment of Non Pros"), which is similar to relief from default under Rule 55(c), F.R. Civ. P. Although such relief is not automatically granted upon application of the plaintiff, but requires the exercise of discretion by a judge, the availability of relief suggests that dismissal with prejudice is improper merely because a plaintiff fails to provide a certificate of merit within the designated sixty days.[6]
To obtain relief from the entry of judgment non pros under Rule 3051, the moving party must establish three factors: 1) the petition for relief must be filed promptly; 2) the failure to file a certificate of merit must be reasonably explained; and 3) the underlying cause of action must be meritorious. PA. R. CIV. P. 3051(b)(1)(3) (2004). The Court finds these criteria useful in determining whether plaintiff's complaint should be dismissed, in light of the fact that plaintiff has now supplied the requisite certificate of merit.
The first element of Rule 3051 requires that a petition for relief be filed promptly. This requirement is likely intended to spare defendants from prejudicial delay. Here, five months passed between the end of the sixty-day period and the filing of the certificate of merit by plaintiff. Because of the defendants' unsuccessful attempt to join a third party, discovery has just begun, and this Court finds that defendants have not shown they have been prejudiced by the delay. The second requirement of Rule 3051 is that a "reasonable explanation or legitimate excuse" attend the failure to file a certificate of merit. Id. Because the Third Circuit has not yet expressly determined that Pennsylvania Rule of Civil Procedure 1042.3 shall be applied as substantive law in diversity actions, this Court finds plaintiffs failure to either attach a certificate of merit to the original complaint, or to file it within sixty (60) days, to be excusable.[7]
If the Court were to consider whether plaintiff would be entitled to relief from a judgment of non pros entered pursuant to Pennsylvania Rule of Civil Procedure 1042.6-though not obligated to make such a determination in considering the motion to dismiss-the Court is satisfied that under Pennsylvania law the Court would grant relief. Although this Court could dismiss plaintiffs complaint without prejudice for failure to file a certificate of merit, now that plaintiff has filed a valid certificate of merit, dismissal without prejudice with leave to amend is unnecessary and would *512 only require paper shuffling and undue delay.

III. Conclusion
The Court concludes that plaintiffs failure to file a certificate of merit with the original complaint does not warrant dismissal with prejudice. Plaintiff has now filed a proper certificate of merit and defendants' Motion to Dismiss (Doc. No. 14) will be denied.
An appropriate Order follows.

ORDER
AND NOW, this day of November, 2004, upon consideration of the Motion to Dismiss filed by Defendants Anthony J. Sciolla, Jr. and Jaffe, Friedman, Schuman, Sciolla & Applebaum, P.C. (Docket No. 14), it is hereby ORDERED that the Motion is DENIED.
NOTES
[1]  The certificate of merit must state either: "(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim." PA. R. CIV. P. 1042.3(a)(1)-(3) (2004).
[2]  The certificate of merit was attached as Exhibit 1 to plaintiff's Brief in Opposition to Motion to Dismiss (Doc. No. 16).
[3]  The New Jersey statute reads in relevant part:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. N.J. Stat. § 2A:53A-27 (2004).
[4]  Judge Gibson of the Western District of Pennsylvania recently considered Pennsylvania's certificate of merit rule and concluded that it should be applied as substantive law in federal courts sitting in diversity. However, in that case the court declined to apply the rule retroactively to a cause of action that arose prior to the rule's adoption by the Pennsylvania Supreme Court. Velazquez v. UPMC Bedford Memorial Hospital, 328 F.Supp.2d 549 (W.D.Pa.2004).
[5]  Plaintiff concedes that "the Third Circuit would hold Pa. R.C.P. 1042.3 to be a substantive rule of law that should be applied by a district court sitting in diversity." Pl's Brief in Opposition to Motion to Dismiss, 5 (Doc. No. 16).

This Court also recognizes that Chamberlain involved medical malpractice rather than legal malpractice. However, both the New Jersey statute and the Pennsylvania Rule of Civil Procedure include doctors and lawyers among the licensed professionals who fall within the ambit of the statute/rule. See N.J. Stat. § 2A:53A-26 (2004) (defining "licensed person") and PA. R. CIV. P. 1042.1 (2004) (defining "licensed professional").
[6]  The Pennsylvania Superior Court recently held that a judge may not dismiss a malpractice claim for failure to file a timely certificate of merit, as long as the certificate is filed before the defendant files a praecipe for judgment of non pros. Moore v. John A. Luchsinger, P.C., 864 A.2d 631, 2004 WL 2601184 (Pa.Super. Nov. 17, 2004). The court in Moore also noted that even if the case had been dismissed for failure to file a certificate of merit, the plaintiff would have been able to refile his claim if the statute of limitations had not yet expired. Id. at 864 A.2d at 634, 2004 WL 2601184, *3 n. 3.
[7]  Defendants do not challenge the adequacy of the expert opinion plaintiff has now supplied, or the merits of the underlying complaint, and therefore there is no need to address the third requirement of Rule 3051.


     Case: 10-10141 Document: 00511389806 Page: 1 Date Filed: 02/22/2011

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 22, 2011

                                       No. 10-10141                         Lyle W. Cayce
                                                                                Clerk

FLUOR CORPORATION,

                                           Plaintiff–Appellee Cross–Appellant
v.

CITADEL EQUITY FUND, LIMITED,

                                           Defendant–Appellant Cross–Appellee

                   Appeals from the United States District Court
                        for the Northern District of Texas
                                No. 3:08-CV-1556

Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       This appeal arises out of a disagreement concerning the interpretation of
an Indenture and Supplemental Indenture, both dated as of February 17, 2004,
governing $330 million principal amount of 1.5% Convertible Senior Notes due
February 15, 2024. Fluor Corporation, the issuer of the Senior Notes, and
Citadel Equity Fund, Ltd., which, prior to June 2008, held approximately $58
million principal amount of the Senior Notes, dispute the calculation of the
number of shares of Fluor common stock issued to Citadel upon conversion of its

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-10141 Document: 00511389806 Page: 2 Date Filed: 02/22/2011

                                   No. 10-10141

Senior Notes. Fluor filed a declaratory judgment action in the District Court for
the Northern District of Texas, seeking a declaration that it complied with the
terms of the Indentures and Senior Notes in satisfying its conversion obligation,
and that Citadel is not entitled to additional shares of Fluor common stock.
Citadel filed a counterclaim for breach of contract, seeking $28,296,946, the
value of the additional shares of common stock that Citadel contends Fluor owes.
Both parties moved for summary judgment.
      The district court granted Fluor’s motion for summary judgment, and
denied Citadel’s motion. Citadel appeals. We affirm for the reasons stated by
the district court in its thorough and well-reasoned Memorandum Opinion and
Order, Fluor Corp. v. Citadel Equity Fund Ltd., — F. Supp. 2d —, 2010 WL
184308 (N.D. Tex. Jan. 15, 2010), which we cannot improve upon. We note that
the district court’s holding is entirely consistent with Broad v. Rockwell
International Corp., 642 F.2d 929 (5th Cir. 1981) (en banc), the case that both
parties agree covers the construction of the Indentures, and with the relevant
principles of New York contract law.
      Fluor cross-appeals from the judgment insofar as the district court ordered
each party to bear its own costs. After entry of judgment, Fluor filed a motion
for attorney’s fees and a motion to amend the judgment for an award of costs,
claiming an entitlement to both as the prevailing party. The district court
granted Citadel’s motion to defer a ruling on attorney’s fees pending its appeal
from the judgment, but may not have addressed the portion of Fluor’s motion
dealing with costs. In perhaps an excess of caution, we vacate the allocation of
costs in the judgment in order to enable the district court, if such was its
intention, to consider Fluor’s motion for costs along with its motion for attorney’s

                                         2
    Case: 10-10141 Document: 00511389806 Page: 3 Date Filed: 02/22/2011

                                       No. 10-10141

fees.1 In doing so, we intimate no views whatsoever on the merits of Fluor’s
motion for costs.
      Accordingly, we AFFIRM the judgment of the district court, except for its
allocation of costs, which we VACATE. We REMAND for reconsideration of
costs. Citadel shall bear the costs of this appeal.

      1
          See Cheatham v. Allstate Ins. Co., 465 F.3d 578, 586–87 (5th Cir. 2006).

                                              3


978 F.2d 453
UNITED STATES of America, Appellee,v.James E. LEWIS, Appellant.
No. 92-2268.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 12, 1992.Decided Oct. 30, 1992.

Stephen G. Hough, Fort Smith, Ark., for appellant.
Matthew Fleming, Asst. U.S. Atty., Fort Smith, Ark., for appellee.
Before McMILLIAN, MAGILL and HANSEN, Circuit Judges.
McMILLIAN, Circuit Judge.

1
James E. Lewis appeals the thirty-four-month prison sentence imposed on him by the district court1 following his guilty plea to making a false statement in connection with the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6).   He argues that the district court erred in failing to reduce his offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility.   We affirm.

2
At his plea hearing, Lewis testified that, while he was intoxicated, he and a friend entered a pawnshop so that his friend could purchase a gun;  because his friend did not have a driver's license, Lewis presented his driver's license to the pawnbroker and signed the necessary form;  he did not tell the truth when he indicated on the form that he was not a convicted felon, but he did not think the misrepresentation "would get [him] in trouble" because he was not going to pay for or possess the gun;  he never touched the gun while in the shop, and his friend paid for the gun and carried it out;  when his friend later put the gun to his head and talked about shooting himself and others, Lewis realized he had made a mistake;  because he did not want anything to do with the gun, he threw it in a trash can, and then he called his friend's mother and told her to come and get her son and take the gun back;  his friend's mother called the police, and when they arrived, Lewis showed them the trash can where he had thrown the gun.

3
At his sentencing hearing, Lewis again testified that he was intoxicated when he was in the pawnshop and that he did not touch the gun until he and his friend returned to his home;  after he had sobered up and realized what he had done, he took the gun from his friend and threw it in the trash can;  he then called his friend's mother and told her to come and get her son, take the gun back, and "get [his] name off that piece of paper."   The owner of the pawnshop testified that Lewis and his friend came into his shop and examined the gun;  he did not smell alcohol on Lewis's breath and Lewis was conversant and did not stagger or appear intoxicated;  Lewis said he wanted to buy the gun, filled out the form, and gave the owner most of the money to pay for it;  the friend paid only one or two dollars that Lewis did not have;  the owner then handed the gun to Lewis.

4
Lewis argues that, in denying the reduction for acceptance of responsibility, the sentencing judge--who was not the same judge that presided over Lewis's plea hearing--erroneously considered only the events surrounding the offense and did not consider Lewis's candid statements at his plea hearing that he did not realize he had committed a crime at the time of his actions.   Lewis argues that the sentencing judge did not consider the fact that, after he was appointed an attorney and informed that he had committed a crime, he confessed.

5
The district court's findings regarding acceptance of responsibility are entitled to great deference and this court may not reverse unless the findings are clearly erroneous.   E.g., United States v. Laird, 948 F.2d 444, 446-47 (8th Cir.1991).   We find no clear error.   Although the sentencing judge did not preside over Lewis's plea hearing, and thus did not have the opportunity to observe his demeanor while he pleaded guilty, the judge did have the opportunity to observe Lewis at the sentencing hearing and to listen to his testimony regarding his actions.   The sentencing judge announced that he considered Lewis's confession to the crime as some evidence of his acceptance of responsibility.   This was proper.   See U.S.S.G. § 3E1.1(c) and comment.  (n. 3) (although entry of guilty plea does not entitle defendant to sentencing reduction as matter of right, it does constitute significant evidence of acceptance of responsibility);  e.g., United States v. Wichmann, 958 F.2d 240, 242 (8th Cir.1992).

6
The district court also properly concluded that, despite Lewis's guilty plea, his actions were not indicative of an acceptance of responsibility.   The record suggests that Lewis realized he had done something unlawful even before he was arrested and appointed an attorney.   Lewis admitted to the judge at his plea hearing that he made a misrepresentation on the form when he indicated that he had no prior felony convictions, but he did not think that "would get [him] in trouble."   Later, however, Lewis threw the gun in the trash can in an apparent attempt to conceal it, and told Jones's mother that he did not want anything to do with the gun and wanted his name removed from "that piece of paper."   It appears that Lewis realized then that his signature on the form could get him into trouble, but he made no affirmative attempt to rectify his unlawful actions.   He did not contact the pawnshop owner or the police to admit his mistake.

7
Moreover, in denying the reduction, the district court acknowledged inconsistencies in the testimony at the sentencing hearing and implicitly credited the testimony of the pawnshop owner.   This determination is entitled to deference.   See United States v. Keene, 915 F.2d 1164, 1170 (8th Cir.1990) (deferring to district court's finding that defendant was not entitled to reduction for acceptance of responsibility because he testified untruthfully and made lame excuses for his conduct), cert. denied, --- U.S. ----, 111 S.Ct. 1001, 112 L.Ed.2d 1084 (1991).

8
Accordingly, we affirm.

1
 The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas


888 So.2d 36 (2004)
TATMAN v. STATE
No. 2D03-980
District Court of Appeal of Florida, Second District
October 1, 2004.
Decision without published opinion. Affirmed.


07s1312scr
USA v. Irving


279 F.2d 673
FLORIDA DEALERS AND GROWERS BANK and Amy E. Moon, Appellants,v.UNITED STATES of America, Appellee.
No. 17821.
United States Court of Appeals Fifth Circuit.
June 10, 1960.

Marion R. Shepard, Jacksonville, Fla., C. Edward Hansell, Atlanta, Ga., John Mc McNatt, William S. Walker, Jacksonville, Fla., for appellants.
Edith House, Asst. U.S. Atty., Jacksonville, Fla., for appellee.
Before HUTCHESON, BROWN and WISDOM, Circuit Judges.
WISDOM, Circuit Judge.

1
This appeal is from an order entered in a forfeiture proceeding brought under 26 U.S.C. 7302,1 declaring an automobile forfeit and denying claims of the appellants, the purchaser and the holder of a chattel mortgage on the automobile, for remission of the forfeiture.2 The ground stated for the issuance of the order was that, since petitioners acquired their interests after the date of the illegal legal use and after title to the automobile had vested in the United States as of the time of the commission of the illegal acts, petitioners had not acquired any interest in the automobile as owners or otherwise, and the court had no discretion to remit or mitigate the forfeiture.

2
The facts are admitted.  On May 4, 1958, William R. Parmenter was the owner of a 1958 Lincoln two-door sedan.  Parmenter has a long record and a reputation for violating the liquor laws.  Cf. Parmenter et al. v. United States, 5 Cir., 279 F.2d 151.  Between May 4, 1958 and June 2, 1958, he used the automobile in violation of provisions of the Internal Revenue Code relating to liquor.3  On July 15, 1958, Parmenter executed a bill of sale for the Lincoln to appellant, Amy E. Moon, for $4,100, indorsed the Florida title certificate to her, and delivered the car to her.  On the same day, the Florida Dealers and Growers Bank lent Mrs. Moon $3,000 secured by a chattel mortgage on the Lincoln.  Before making the loan, the Bank asked the Credit Bureau of Jacksonville, Florida, about Mrs. Moon's reputation and was informed that she had no record or reputation for violating liquor laws.

3
September 12, 1958, the Treasury Department seized the automobile on Parmenter's premises.  November 6, 1958, the United States filed a libel of information praying for forfeiture of the Lincoln.  The Bank and Mrs. Moon filed separate petitions for remission or mitigation of the forfeiture.  On libellant's motion for a summary judgment and on concessions made by the libellant 'for the purposes of the summary judgment,'4 the district judge entered a judgment ordering forfeiture of the automobile and denied both petitions for remission or mitigation.5

I.

4
The lower court relied on Weathersbee v. United States, 4 Cir., 1958, 263 F.2d 324; United States v. One 1954 Model Ford, D.C.E.D.N.C.1955, 135 F.Supp. 809; United States v. 1960 Bags of Coffee, 1814, 8 Cranch 398, 12 U.S. 398, 3 L.Ed. 602; In re Henderson's Distilled Spirits, 1872, 14 Wall. 44, 81 U.S. 44, 20 L.Ed. 815; Grogan v. United States, 5 Cir., 1958, 261 F.2d 86.  With one exception these cases dealt with an opposition to forfeitureNot a petition for remission, as in this proceeding.  Remission, however, presupposes forfeiture and assumes title in the Government.  The only question for our decision, therefore, is whether in respect of the claims for remission the case was correctly tried and correctly decided below.  For the reasons hereafter stated, we do not think so.

II.

5
The forfeiture statute takes effect immediately upon the commission of the illegal act.  At that moment the right to the property vests in the United States, and when forfeiture is sought, the condemnation when obtained relates back to that time, and avoids all intermediate sales and alienations, even as to purchasers in good faith.  United States v. Stowell, 1890, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555.  In a number of cases, therefore, courts have dismissed oppositions to forfeiture on the ground that the claimant acquired his interest after the illegal use.  United States v. Stowell, supra; Wingo v. United States, 5 Cir., 1959, 266 F.2d 421; Weathersbee v. United States, 4 Cir., 1958, 263 F.2d 324.

6
Since no attack is made here upon the judgment of forfeiture but merely upon the order on the claims for remission, these cases are without significance here.  For, although the government's right to forfeiture under26 U.S.C.A. 7302 and a claimant's right to ask the court for remission under18 U.S.C.A. 3617 are closely tied together, different principles and different considerations apply to each.6  The primary purpose of the forfeiture statute is to protect the revenue.  The primary purpose of the remission statute is to relieve innocent persons whose property has been seized.7  Both statutes however must be construed as far as possible so as to give effect to the purpose of each without sacrificing either.

7
The pertinent part of 18 U.S.C.A. 3617 provides:

8
'Whenever, in any proceeding in court for the forfeiture, under the internal-revenue laws, of any vehicle or aircraft seized for a violation of the internal-revenue laws relating to liquors, such forfeiture is decreed, the court shall have exclusive jurisdiction to remit or mitigate the forfeiture.

9
'(b) Conditions precedent to remission or mitigation

10
'In any such proceeding the court shall not allow the claim of any claimant for remission or mitigation unless and until he proves (1) that he has an interest in such vehicle or aircraft, as owner or otherwise, which he acquired in good faith, (2) that he had at no time any knowledge or reason to believe that it was being or would be used in the violation of laws of the United States or of any State relating to liquor * * *'

11
As we read it, this language may include an interest acquired by an innocent person after illegal use.  The words was being in Section 3617(b)(2) import some prior or present illegal use.  If illegal use automatically destroyed all subsequent rights to mitigation of forfeiture, as the Government contends, it would be useless in a forfeiture proceeding for a claimant to prove he had no knowledge or reason to believe that the car was being illegally used.  Such a construction would render that portion of the statute meaningless.  It would go a long way toward defeating the purpose of the statute, for it would protect only those claimants who acquired their interest before the illegal use.  This would allow the government to wait at its own pleasure and, perhaps long after the illegal use, seize and libel a vehicle thereby depriving any number of subsequent good faith vendees, mortgagees, or assignees of conditional sales contracts of the opportunity to petition for remission of forfeiture.  We cannot accept such an interpretation.

12
In a forfeiture proceeding it is the property that is proceeded against.  The vehicle is held guilty as if it were a sentient being.  Various Items of Personal Property v. United States, 1931, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558.  Under the doctrine of relation back, the illegal use of the automobile vests title in the Government from the time of the vehicle's commission of the crime and cuts off all 'property rights' of others in the automobile.  By its nature, the remission statute assumes the validity of the forfeiture but also assumes that outstanding interests in property and bona fide claims to property are not snuffed out by the car's guilt.  They continue viable, at least to the extent of permitting innocent persons to ask that the sovereign temper the strictness of the rule of forfeiture when there are equitable grounds for relief.

13
In short, we recognize the full effect of the forfeiture for the purpose of vesting title in the United States.  Indeed the validity of the forfeiture is not at issue in this case.  What is of substance and at issue here is whether under the real, as opposed to the assumed, facts of this case, the claimants have such interest in the forfeited property as to permit the district judge to consider whether, in the exercise of a sound discretion, he should or should not grant remission of the forfeiture under 18 U.S.C.A. 3617.  Good conscience and equity are the controlling considerations with the judge in acting under it.  Beaudry v. United States, 5 Cir., 106 F.2d 987; United States v. Frank Graham Co., 5 Cir., 199 F.2d 499; United States v. One 1955 Model Buick, 4 Cir., 241 F.2d 90; United States v. One 1936 Model Ford,  307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249.  Because of the circumstances relating to Parmenter and his original and continuing connection with the car, and because remission should be based only upon a real and not a supposititiousequity (see United States v. One 1936 Model Ford,307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249 and cases cited above), we hold that the case was incorrectly tried below by summary judgment on facts not established but merely assumed for the purpose of the summary judgment.  We therefore reverse the judgment with directions to try the case on the facts as they are, to determine whether, under the Remission Act, the claims of one or both of the appellants qualify them for the consideration of their petition for remission, and if it is determined that they do, for further proceedings under the informed discretion of the district judge to decide whether remission should or should not be granted.

1
 26 U.S.C.A. 7302 provides:
'It shall be unlawful to have or possess any property intended for use in violating the provisions of the internal revenue laws, or regulations prescribed under such laws, or which has been so used, and no property rights shall exist in any such property * * *.'

2
 18 U.S.C.A. 3617 provides:
'3617.  Remission or mitigation of forfeitures under liquor laws; possession pending trial-- (a) jurisdiction of court
'Whenever, in any proceeding in court for the forfeiture, under the internal-revenue laws, of any vehicle or aircraft seized for a violation of the internal-revenue laws relating to liquors, such forfeiture is decreed, the court shall have exclusive jurisdiction to remit or mitigate the forfeiture.  (b) Conditions precedent to remission or mitigation--
'In any such proceeding the court shall not allow the claim of any claimant for remission or mitigation unless and until he proves (1) that he has an interest in such vehicle or aircraft, as owner or otherwise, which he acquired in good faith, (2) that he had at no time any knowledge or reason to believe that it was being or would be used in the violation of laws of the United States or of any State relating to liquor, and (3) if it appears that the interest asserted by the claimant arises out of or is in any way subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any State relating to liquor has a right with respect to such vehicle or aircraft, that, before such claimant acquired his interest, or such other person acquired his right under such contract or agreement, whichever occurred later, the claimant, his officer or agent, was informed in answer to his inquiry, at the headquarters of the sheriff, chief of police, principal Federal internal-revenue officer engaged in the enforcement of the liquor laws, or other principal local or Federal law-enforcement officer of the locality in which such other person acquired his right under such contract or agreement, of the locality in which such other person then resided, and of each locality in which the claimant has made any other inquiry as to the character or financial standing of such other person, that such other person had no such record or reputation.'

3
 The libel of information of the United States alleges that the automobile was used in carrying on the business of a wholesale dealer in liquors without the dealer having paid the tax imposed under Section 5111(a), Internal Revenue Code of 1954, 26 U.S.C.A. 5111(a); that on several occasions the automobile was used for transporting distilled spirits on which the Internal Revenue taxes had not been paid

4
 For purposes of its motion for a summary judgment the government admitted that Mrs. Moon was not required to make the inquiries set forth in 18 U.S.C.A. 3617(b).  The government also admitted that the Bank made proper inquiries as to Mrs. Moon's record and reputation

5
 The district court found: '* * * because of said violations Amy E. Moon acquired 'no interest', as contemplated by 18 U.S.C.A. Section 3617(b), in said vehicle when she allegedly purchased same from William R. Parmenter on or about July 15, 1958, and a fortiori, she had no interest in said vehicle on which she could give a lien to the petitioner, Florida Dealers and Growers Bank, to secure the loan made to her by said bank on July 15, 1958.  By reason thereof, the Court finds it has no discretion to remit or mitigate the forfeiture.'

6
 Before the adoption of the remission and mitigation statute, Liquor Law Repeal and Enforcement Act of August 27, 1935, c. 740, Section 204, 49 Stat. 878, courts had power to decree only a forfeiture of any vehicle or aircraft used in violation of internal revenue laws.  Remission or mitigation were dependent upon administrative action.  H.R.Rep.No. No. 1601, p. 6, 74th Cong., 1st Sess., 1935.  For additional background see United States v. One 1936 Model Ford, 1939, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249

7
 The distinction between opposition to forfeiture and a petition for remission or mitigation appears in several cases involving the troubles of Anthony DeBonis and his Plymouth coupe.  Brtween October 1, 1947 and February 12, 1958, Rocco DeBonis used his Plymouth to haul supplies of illegal whiskey.  His daughter was owner of the car at that time or, at any rate, the title was in her name.  In April 1948 she sold the car to her brother, Anthony DeBonis.  May 19, 1948, officers found the car in Anthony's yard and seized it without a warrant.  Forfeiture proceedings were instituted.  Anthony resisted the forfeiture on the grounds that the seizure was unlawful and destroyed the government's right to forfeiture.  He did not seek remission or mitigation.  In declaring the car forfeited, the court pointed out: 'The appropriate procedure for the determination of the claim of Anthony DeBonis is provided in 18 U.S.C.A. Section 3617.  If a petition is filed for the remission of the forfeiture which is to be entered, the Government and the claimant will then have a full and complete opportunity to establish all facts and circumstances which will have any relevancy in determining whether Mamelia Theresa (the daughter) knew or should have known the use to which the vehicle had been made by Rocco DeBonis, and whether Anthony DeBonis was a purchaser in good faith and knew or should have known the use to which the car had been given by Rocco DeBonis.'  United States v. Plymouth Coupe, D.C.W.D.Pa.1950, 88 F.Supp. 93.  This is a clear recognition that a claimant acquiring an interest in an automobile after its illegal use may be entitled to remission if in good faith.  Anthony appealed from the judgment of forfeiture instead of heeding the court's advice to seek remission.  The Third Circuit held that the illegal seizure destroyed the government's right to forfeiture.  United States v. Plymouth Coupe, 3 Cir., 1950, 182 F.2d 180.  Anthony, stimulated by his success in recovering the car, decided to sue under the Tort Claims Act.  He lost the suit, but the court stated in a footnote: 'Plaintiff, as an innocent and bona fide purchaser of this vehicle, might have regained possession and title as a matter of grace by applying to the Court for remission of forfeiture under Section 3617, 18 U.S.C.A.'  DeBonis v. United States, D.C.W.D.Pa.1952, 103 F.Supp. 123, 127