Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of 23 Electronically Operated "Pinball and Console" Amusement Machines v. Commonwealth of Pennsylvania, No. 73-00-0327, Miscellaneous Docket.
Glenn Gilman, Assistant Attorney General, with him M. Faith Angell, Assistant Attorney General, Michael Von Moschzisker, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
John F. X. Fenerty, with him Charleston & Fenerty, P.C., for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.
The subject matter, the nature of and the "parties" to the proceedings below are all involved in this appeal
by the Commonwealth from an order of the lower court dismissing its preliminary objections to a petition seeking to suppress evidence and to have returned certain allegedly non-skill or multi-coin pinball or console devices seized pursuant to the Act of March 31, 1860, P.L. 382, 18 P.S. § 1445 (repealed 1972), to the places from which they were taken.
Following an investigation by officers of the Pennsylvania State Police, search warrants were sought before and issued by a judge of the Court of Common Pleas of Philadelphia County for the seizure of certain identified machines or devices alleged to be gambling devices per se, presumably upon proof of probable cause. Nineteen warrants were issued and on January 22, 1973, they were executed resulting in the seizure of twenty such devices and the seizure of three additional devices not supported by a search warrant. Since then all seized devices remain in the custody of the Pennsylvania State Police. Notwithstanding the provisions of the Act of 1860 that the seizing officer shall make a return of the seizure to "the next court of quarter sessions of the proper county,"*fn1 the Pennsylvania State Police failed to comply with this statutory mandate and continue to do so.
On February 1, 1973, the above petition was filed by the "in rem interests" in the seized machines alleging that those taken without a search warrant were seized without probable cause and not incident to a lawful arrest; that none of the seized machines were in any way connected with or instruments of the commission of any crimes, and that the search warrants issued were served and executed in an illegal and improper manner. We need not and do not reach these issues in disposing of this appeal.
The Commonwealth's preliminary objections are a multiple attack upon the jurisdiction of the lower court over the subject matter, over the parties, the want of capacity to sue on the part of petitioner, and the want of specificity and the failure of the petitioner to state a cause of action.
The lower court in its opinion addressed itself to each of the Commonwealth's preliminary objections and found them to be without merit. We affirm. In doing so, because of the novelty of the question in relation to this Court's exclusive original jurisdiction in "[a]ll civil actions or proceedings against the Commonwealth or any officer thereof . . . ," Section 401, Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. ...