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AMERICAN LEGION POST NO. 51 APPEAL (03/18/59)

March 18, 1959

AMERICAN LEGION POST NO. 51 APPEAL


Appeal, No. 224, April T., 1958, from order of Court of Quarter Sessions of Fayette County, June T., 1957, No. 151, in re return of Julius A. Trombetta, Sergeant, Pennsylvania State Police. Order affirmed.

COUNSEL

Louis C. Glasso, with him Henry Beeson, and Anthony Cavalcante, for appellant.

Frank P. Lawley, Jr., Deputy Attorney General, with him George A. Lindsay, Assistant Attorney General, John D. Killian, III, Deputy Attorney General, and Thomas D. McBride, Attorney General, for appellee.

Richard P. Steward, District Attorney, argued as amicus curiae.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 188 Pa. Super. Page 482]

OPINION BY HIRT, J.

On June 20, 1957 Pennsylvania State Police in concerted action, with the cooperation of local peace officers, seized 41 pinball machines at various restaurants, pool rooms, clubs, and the like, in Fayette County. The machines were all of the Bingo ro "in-line" type of machine, manufactured or sold by Bally Manufacturing Company of Chicago. Two separate returns were made to the quarter sessions by Sergeant Trombetta of the State Police who was in charge of the raid. On return identified and described Bally pinball machines which, when seized, were actually being used for unlawful gambling. These machines were adjudged forfeited and were ordered to be publicly destroyed; the action of the court in that respect has not been questioned. We are concerned here with the rule granted on a petition accompanying a second return as to 2j of the same type of Bally machines alleged to be gambling devices per se, although not actually in use for that purpose at the time of the seizure. The lower court, after extensive hearings before it en banc, adjudged all of the machines ("listed and described in Exhibit A" of the return) forfeited as gambling devices and ordered their destruction. The proceedings were in rem under the Act of March 31, 1860, P.L. 382, § 60, 18 PS § 1445. Among the pinball machines identified in the return there were variations in type and with different names, but admittedly they all are fundamentally the same in character and logic of operation;

[ 188 Pa. Super. Page 483]

    they all have the same basic features and all are multiple -coin "in-line Bingo type pinball machines." Most of the testimony, as well as the exhibits in evidence, had to do with the so-called "Bally Show Time" machines, the latest development of the type, and particularly with a Bally Show Time five cent machine number T 6887.

The appellant leans heavily on Wigton's Return, 151 Pa. Superior Ct. 337, 30 A.2d 352 in arguing for a reversal in this appeal. That proceeding, under the same section of the 1860 Code as is here invoked, was in rem for the destruction of single -coin pinball machines. In that proceeding there was no evidence that the players were ever paid off in money or merchandise or that gambling among the players was permitted on the premises where the machines were seized. What a player could win by playing that type of single coin pinball machine, after the deposit of a coin, was the right to play additional free games and nothing more. And these machines did not have (in the language of Judge KENWORTHEY) "... the button or mechanical device for canceling the 'free games' nor the recording meter which were used, in the machines in Urban's Appeal, [148 Pa. Superior Ct. 101, 24 A.2d 756] to facilitate their use for gambling ..." In the Wigton case we held that the right to play a "free game" in itself was neither money nor "other property of value" within the meaning of § 603 of the Act of June 24, 1939, P.L. 872 relating to gambling devices and their use, although we there recognized, as in Urban's Appeal, that the question was debatable under conflicting authorities in various jurisdictions. In all of the machines, involved in the present appeal, as with the amusement type of single coin machines before us in Wigton's Return, five balls were made available to the player upon the insertion of a single coin and, however extended the play,

[ 188 Pa. Super. Page 484]

    the machines recorded the successes of the player only in terms of the number of free games won, ...


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