June 27, 1951
YORK OFFICERS' AND EMPLOYEES' RETIREMENT BOARD
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.
Henry B. Leader, with him McClean Stock, for appellant.
Herbert B. Cohen, with him John W. Heller, 3rd, for appellees.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
[ 368 Pa. Page 183]
OPINION BY MR. JUSTICE JONES
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.
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