Appeal from order of Court of Common Pleas of Westmoreland County, Oct. T., 1970, No. 209, in case of Nu-Ken Novelty, Inc. v. Richard J. Heller.
John F. Dent, Assistant District Attorney, and John N. Scales, District Attorney, for appellant.
Irving M. Green, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Cercone, J., concurs in the result.
[ 220 Pa. Super. Page 432]
This appeal is from an order of the lower court directing the return of thirteen pinball machines to their owner, Nu-Ken Novelty, Inc. The machines in question had been confiscated by the Pennsylvania State Police under authority of the Act of March 31, 1860, P. L. 382, § 60, 18 P.S. § 1445. This act provides for confiscation and forfeiture of "any device or machine . . . used and employed for the purposes of unlawful gaming. . . ." The question presented by this appeal
[ 220 Pa. Super. Page 433]
is whether the confiscated pinball machines are in fact devices "used . . . for . . . unlawful gaming" and therefore subject to forfeiture.
At the trial below no attempt was made to show that the confiscated pinball machines were actually used for gambling. Consequently, the machines cannot be forfeited unless they are so intrinsically connected with gambling as to constitute gaming devices per se. Friedberg Appeal, 208 Pa. Superior Ct. 312, 222 A.2d 509 (1966). A machine is a gaming device per se if it can be used for no purpose other than gambling. Friedberg, supra; Commonwealth v. Joyce, 78 York 157 (1965). The mere fact that a machine involves a substantial element of chance is insufficient to condemn it as a gaming device. Wigton's Return, 151 Pa. Superior Ct. 337, 30 A.2d 352 (1943). In establishing whether a machine is a gaming device the burden of proof is upon the Commonwealth. Wigton's Return, supra. However, since the proceeding is in rem, the Commonwealth is not held to the same degree of proof required in a criminal trial. Pannulla v. Rosenberg, 171 Pa. Superior Ct. 233, 90 A.2d 267 (1952).
The trial court applied the above principles to the pinball machines presently in issue and found them not to be gaming devices per se. We affirm this finding.
The nature of the machines in issue is as follows: Each is a combination of slot machine and pinball machine. The first phase of play is the "slot machine" phase. Play is begun by the insertion of a dime in the machine which causes symbols on a panascope to spin. When the symbols come to rest, a combination of the symbols is formed. Some combinations are "lucky" and others are not. The "lucky" combinations greatly increase a player's ability to obtain a high final score
[ 220 Pa. Super. Page 434]
after the "pinball" phase of play is completed. The pinball phase consists of a standard pinball plunger which propels a ball to the top of an inclined plane. The ball rolls down the inclined plane hitting bumpers and thereby racking up a score. A player's final score is computed by totaling the pinball-produced points and increasing the total by additional points if a lucky combination of symbols resulted from the "slot machine" phase of play. The only reward received for a high score is ...