Appeal from the judgment of Superior Court at No. 1312 Philadelphia 1985, entered March 31, 1986, affirming judgment of the Court of Common Pleas of Bucks County, at No.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., and Larsen, J., did not participate in the decision of this case.
On December 18, 1984, twelve electronic poker machines owned by Bat Vending Company were seized by Bristol Township police officers at various locations in Bucks County. Bat Vending Company filed a motion seeking return of the machines, and the Commonwealth sought to have the machines forfeited as gambling devices. After an evidentiary hearing, the Bucks County Court of Common Pleas denied Bat Vending Company's motion and ordered that the seized property be forfeited to the Commonwealth. On
appeal, Superior Court, 356 Pa. Super. 592, 512 A.2d 54, affirmed per curiam. We granted allocatur to determine whether the lower courts erred in finding that the poker machines were gambling devices per se. We hold that the evidence was insufficient to establish the requisite element of reward to sustain a finding that the machines were gambling devices per se and reverse.
The poker machines are video game simulations of five card draw poker. During the hearing before the trial court, a machine was produced for demonstration purposes. The parties stipulated that the model was representative of the machines that were seized, except that it allowed twenty credits to be used at a time, rather than ten credits. It was stipulated also that the coin-operated machines have a book-keeping capacity to determine the number of games played and the number of credits.
Within the circuitry of a machine is an electronic chip designated as "U-17". The "U-17" chip can be removed and replaced with a chip that will enable the machine to knock off game credits if a jumper cable is inserted between the "cancel" and "stand" buttons on the machine. Removal and replacement of the chip can be accomplished in approximately 15 seconds. When the machines were seized, the circuitry had not been altered. There was no evidence that the machines had been used for gambling purposes.
The trial court concluded that the machines were gambling devices per se and ordered them to be forfeited pursuant to 18 Pa.C.S. § 5513(b), which provides that any gambling device possessed or used in violation of subsection (a) shall be seized and forfeited to the Commonwealth. Section 5513(a) defines the gambling offense as follows:
A person is guilty of a misdemeanor of the first degree if he:
(1) intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing
card, slot machine or any device to be used for gambling purposes, except playing cards;
(2) allows persons to collect and assemble for the purpose of unlawful gambling at any ...