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AMERICAN LEGION POST NO. 51 APPEAL. (11/24/59)

November 24, 1959

AMERICAN LEGION POST NO. 51 APPEAL.


Appeal, No. 164, March T., 1959, from order of Superior Court, April T., 1958, No. 224, affirming order of Court of Quarter Sessions of Fayette County, June T., 1957, No. 151, in re return of Julius A. Trombetta. Order affirmed; reargument refused December 17, 1959. Same case in Superior Court: 188 Pa. Super.Ct. 480. Proceedings upon petition by State Police for rule to show cause why coin pinball machines seized as gambling devices should not be forfeited and destroyed. Before BANE, J. Order entered making rule absolute. Intervenor appealed to Superior Court which affirmed order, opinion by HIRT, J. Appeal to Supreme Court allowed.

COUNSEL

James P. McArdle, with him James E. McLaughlin, Louis C. Glasso, Anthony Cavalcante, and Henry Beeson, for appellant.

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

Richard P. Steward, District Attorney, for amicus curiae.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Per Curiam

[ 397 Pa. Page 431]

OPINION PER CURIAM

The order of the Superior Court affirming the order of the court below forfeiting the pinball machines in controversy and directing their destruction is affirmed on the opinion of Judge HIRT, reported at 188 Pa. Superior Ct. 480.

Mr. Justice MCBRIDE took no part in the consideration or decision of this case.

Mr. Justice BELL and Mr. Justice MUSMANNO file separate dissenting opinions.

[ 397 Pa. Page 432]

DISSENTING OPINION BY MR. JUSTICE BELL:

Seventeen pinball machines were seized by the Pennsylvania State Police at various establishments in Fayette County on June 20, 1957, including the American Legion Post No. 51. The Quarter Sessions Court sustained the position of the Commonwealth that these machines were gambling devices per se under the provisions of § 60 of the Act of March 31, 1860, P.L. 382, 18 PS § 1445. There was no testimony offered to prove that actual gambling took place on or in connection with these machines,*fn1 or that money or merchandise, or anything of value, had ever been paid to the winners. So far as the record shows, the only prize or reward which a winner received was the right to play free additional games, and this is not unlawful gambling. Furthermore, although it is easy to believe that the machines were frequently used for unlawful gambling, the evidence in this record does not, in my opinion, justify the majority's conclusion that these machines were manufactured or used and employed solely for the purpose of unlawful gambling.

Section 60, supra, provides: "It shall and may be lawful for any sheriff ... to seize upon, secure and remove any device or machine of any kind, character or description whatsoever, used and employed for the purposes of unlawful gambling*fn2 ... and to arrest ... any person setting up the same ... and the said court ... if satisfied that such device or machine was employed and used for the purpose of unlawful gaming as aforesaid, shall adjudge the same forfeited, and order it to be publicly destroyed ...."

[ 397 Pa. Page 433]

The question involved is whether these pinball machines - considering the details of their construction and the evidence in the case - are illegal per se. Neither gambling, nor unlawful gambling, nor "a device or machine used and employed for unlawful gambling" is defined in the Act. There is no doubt that if and when these or any other machines are actually used for unlawful gambling they are illegal and may be seized and confiscated by the Commonwealth.

It is Hornbook law that a Penal Statute must be strictly construed: Act of June 24, 1939, P.L. 872, 18 PS § 5104; Act of May 28, 1937, P.L. 1019, Art. IV, § 58, 46 PS § 558; Commonwealth ex rel. Varronne v. Cunningham, 365 Pa. 68, 73 A.2d 705; Commonwealth v. Morgan, 278 Pa. 395, 123 A. 337; Commonwealth ex rel. Keiffer v. Ceraul, 182 Pa. Superior Ct. 511, 128 A.2d 187. Admittedly there is no evidence that these machines were used or employed for the purpose of unlawful gambling. Moreover, in my judgment, if these machines can be used either for pleasure or for unlawful gambling purposes, that is not sufficient to make them illegal per se, or to justify their confiscation and destruction by the Commonwealth. The evidence and the aforesaid authorities furnish a complete and decisive determination - adverse to the Commonwealth - of the question involved in the instant case.

In view of the fact that the argument and the various Court opinions have taken such a wide range, I shall discuss several of the points relied upon.

What is unlawful gambling, and what is a gambling device or machine within the meaning of § 60? It may be helpful to also consider § *fn6043 of the Act of June 24,

[ 397 Pa. Page 4341939]

, P.L. 872 (The Penal Code) which provides: "Whoever makes, manufactures, or assembles any punch board, drawing card, slot machine, or any machine or device used or intended to be used for gambling, is guilty of a misdemeanor ...." Gambling itself is difficult to define; however, it involves the payment to the winner of money or something of value, and it is not limited to games or bets which are dependent solely upon chance; bets on games, or playing machines, etc., for money or something of value, even though the games or machines involve a combination of both skill and chance, and can be played for pleasure, may amount to unlawful gambling: Cf. Wigton's Return, 151 Pa. Superior Ct. 337, 30 A.2d 352.

A few examples will illustrate my differences with the majority and additional reasons for my dissent.

A backgammon board can be used for pleasure or for gambling*fn4 - it is common knowledge that it is usually used for purposes of gambling, and in the latter event a few dollars change hands. A bridge table can be used for pleasure or for gambling; it is common knowledge that it is usually used for gambling. The players play for 1/40th of a cent to a penny a point, and ten cents to a few dollars change hands every evening. In each of these games a vast majority of the players are unskillful, and those who are inexperienced or unskillful loudly proclaim to uninterested companions that the ...


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