No. 2656 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Luzerne County, Criminal Division, No. 1337 of 1975
Thomas E. Mack, Wilkes-Barre, for appellants.
Joseph P. Giovannini, Jr., Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Hester, Hoffman and Catania, JJ.*fn*
[ 270 Pa. Super. Page 446]
This appeal is from an order entered on September 25, 1978 in the Court of Common Pleas of Luzerne County, authorizing the destruction of certain slot machines that had been seized pursuant to 18 Pa.C.S.A. § 5513(b).*fn1 Appellants, owners of the machines, are seeking a reversal of that order and a remand to the lower court to determine whether the machines qualify for the protection of the Act of July 1, 1978, P.L. 572, No. 103, § 1, 18 Pa.C.S.A. § 5513(c).
On April 17, 1975, the appellee and another state police trooper seized the slot machines in question. Criminal complaints were issued against the owners shortly thereafter, but the charges were dismissed at the preliminary hearing. Subsequently, the owners filed an application for return of the machines. After a hearing, the lower court ordered the return of some machines and the destruction of certain other machines that were determined to be gambling devices in violation of 18 Pa.C.S.A. § 5513(a).*fn2 The owners appealed
[ 270 Pa. Super. Page 447]
the order to this Court, and we affirmed at that time.*fn3 On August 30, 1977, the lower court issued an order pursuant to § 5513(b), authorizing the state police to destroy the machines that had been specified as gambling devices.
On July 1, 1978, the Governor signed Act 103 into law, to become effective on July 31, 1978. This Act amended 18 Pa.C.S.A. § 5513 by adding the following subsection:
(c) Antique slot machines. -- (1) A slot machine shall be established as an antique slot machine if the defendant shows by a preponderance of the evidence that it was manufactured prior to 1941 and that it was not used or attempted to be used for any unlawful purposes. Notwithstanding subsection (b), no antique slot machine seized from any defendant shall be destroyed or otherwise altered until the defendant is given an opportunity to establish that the slot machine is an antique slot machine. After a final court determination that the slot machine is an antique slot machine, the slot machine shall be returned pursuant to the provisions of law providing for the return of property; otherwise, the slot machine shall be destroyed.
(2) It is the purpose of this subsection to protect the collection and restoration of antique slot machines not presently utilized for gambling purposes.
Since the scheduled destruction of the machines was imminent, the owners filed a petition requesting that the trial court stay the scheduled destruction and issue a rule to show cause why the stay should not be made permanent and the items should not be returned to the owner. On July 18, 1978, upon consideration of this petition, the court ordered the stay and issued ...