No. 1209 Philadelphia, 1980, No. 2134 Philadelphia, 1980, Appeal from Orders of the Court of Common Pleas, Criminal Division, of Lehigh County at Nos. 9-M of 1980 and 10-M of 1980.
Richard R. Tomsho, Assistant District Attorney, Allentown, for appellant (at No. 1209) and for appellee (at No. 2134).
William M. Thomas, Allentown, for appellant (at No. 2134) and for One Electronic, appellee (at No. 1209).
Cavanaugh, Johnson and Lipez, JJ.
[ 302 Pa. Super. Page 352]
This case involves two appeals at Nos. 1209 Philadelphia, 1980 and 2134 Philadelphia, 1980, which were consolidated for argument before a panel of this court. We shall dispose of both appeals in this opinion.
Appeal at No. 1209 Philadelphia, 1980
In January, 1980, the police seized an electronic poker game and an electronic blackjack game located at the Liberty Fire Company Social Club in Allentown, Lehigh County, pursuant to a search warrant. The Commonwealth filed a petition to have the machines forfeited to the state under the authority of The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S.A. § 5513(b).*fn1 There was no evidence that the machines seized at the Liberty Fire Company Social Club were being used for gambling purposes. The court below found that the machines seized were not gaming devices per se and could be used for amusement purposes, and therefore dismissed the petition. The Commonwealth has appealed to this court from the order of dismissal.
The machines involved in this appeal simulate the games of poker and blackjack. To play a game the player must either insert from one to eight quarters or have accumulated sufficient "skill points" from previous games. Consideration is required to play the games either in the form of coins or skill points. There are no rewards to the player who wins other than the award of skill points which can be used towards playing future games.
[ 302 Pa. Super. Page 353]
The law is very restrictive as to what type of machine may be forefeited to the Commonwealth under § 5513(b) of The Crimes Code. As pointed out in Nu-Ken Novelty, Inc. v. Heller, 220 Pa. Super. 431, 433, 288 A.2d 919, 920 (1972) unless it is shown that the machines are actually used for gambling then:
the machines cannot be forfeited unless they are so intrinsically connected with gambling as to constitute gaming devices per se. Friedberg Appeal, 208 Pa. Super. 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 ...