Opinion
April 9, 1951.
June 27, 1951.
Altieri v. Allentown Officers' and Employees' Retirement Board, 368 Pa. 176, followed.
Argued April 9, 1951. Before STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Appeal, No. 25, May T., 1951, from judgment of Court of Common Pleas of York County, April T., 1949, No. 265, in case of Earl Akins v. City of York and Officers' Employees' Retirement Board. Judgment affirmed.
Proceeding upon amended complaint for writ of mandamus.
Defendants' preliminary objections sustained and final decree entered for defendants, opinion by ANDERSON, J. Plaintiff appealed.
Henry B. Leader, with him McClean Stock, for appellant. Herbert B. Cohen, with him John W. Heller, 3rd, for appellees.
The question involved on this appeal is the same as in the case of Altieri v. Allentown Officers' and Employees' Retirement Board, p. 176 ante. The result in the lower court in the instant case is opposite to that reached in the Altieri case. In this case the learned court below sustained the defendant board's contention that Section 4(b) of the Third Class City Employees Retirement Law of May 23, 1945, P.L. 903, violates Sections 11 and 18 of Article III of the Pennsylvania Constitution and, accordingly, entered judgment for the board. The plaintiff-employee thereupon brought this appeal. As we pointed out in the Altieri case, supra, the constitutional questions need not be considered in view of the fact that Section 4(b) is deficient and unenforceable. For the reasons set forth in the Altieri case, we approve the judgment entered in the instant case.
Judgment affirmed.