Com. v. Two Electronic Poker Game Machines

• Decision Date: 13 October 1983
• Docket Number: No. 258,A,ELECTRO-SPORT,258
• Citation: Com. v. Two Electronic Poker Game Machines, 465 A.2d 973, 502 Pa. 186 (Pa. 1983)
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. TWO ELECTRONIC POKER GAME MACHINES and One Electronic Blackjack Game Machine. Appeal of KING AMUSEMENT COMPANY, INC., Intervenor, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. ONE ELECTRONIC POKER GAME MACHINE and One Electronic Blackjack Game Machine, Intervenor, King Amusement Company, Inc., Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. ONEDRAW POKER MACHINE Serialppellee.
• Court: Pennsylvania Supreme Court

Page 973

465 A.2d 973

502 Pa. 186

COMMONWEALTH of Pennsylvania, Appellee, v. TWO ELECTRONIC POKER GAME MACHINES and One Electronic

Blackjack Game Machine.

Appeal of KING AMUSEMENT COMPANY, INC., Intervenor, Appellant.

COMMONWEALTH of Pennsylvania, Appellant, v. ONE ELECTRONIC POKER GAME MACHINE and One Electronic

Blackjack Game Machine, Intervenor, King Amusement

Company, Inc., Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. ONE ELECTRO-SPORT DRAW POKER MACHINE Serial No. 258, Appellee.

Supreme Court of Pennsylvania.

Argued April 25, 1983.

Decided Sept. 21, 1983.

Reargument Denied Oct. 13, 1983.

[502 Pa. 189] William M. Thomas, Allentown, for King Amusement Co., Inc.

William Platt, Dist. Atty., Richard Tomsho, Robert L. Eberhardt, Kemal Alexander Mericli, Asst. Dist. Attys., for the Com.

Wayne DeLuca, Pittsburgh, for One Electro-Sport Draw Poker Machine Serial No. 258.

Before ROBERTS, C.J., and NIX, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION OF THE COURT

HUTCHINSON, Justice.

These cases require us to consider the issue of what constitutes a gambling device per se, as well as the distinct but related issue of the power of a court to order the seizure and forfeiture of a machine which while not a gambling device per se is shown to have been used for gambling purposes. Specifically, we must determine whether electronic devices which simulate some of the elements of the games of draw poker and blackjack and which give only free games as a reward for successful play are nevertheless gambling devices per se when they also possess a "knockdown" button and a meter to record the number of free games knocked down.

In both Commonwealth v. One Electronic Poker Game Machine and One Electronic Blackjack Game Machine (One Poker Game ) (No. 88 E.D. Appeal Dkt.1982) and Commonwealth v. One Electro-Sport Draw Poker Machine (Electro-Sport ) (No. 68 W.D. Appeal Dkt.1982), the lower courts held the machines were not gambling devices per se because they could be used for purposes other than gambling and the elements of pure chance and a reward, necessary to the finding of a gambling device per se, were not present. Bearing in mind that the Commonwealth has the burden of proving the per se nature of the machines, but also that the proceedings are in rem in nature, requiring the Commonwealth to prove its case only by a preponderance of the evidence, we hold that on the facts of Electro-Sport, the evidence was sufficient to show that the machine in question was a gambling device per se. We thus reverse the Superior Court's ruling in Electro-Sport. Based on our disposition of Electro-Sport, we find that the evidence which points to the per se nature of the machine in that case is lacking in One Poker Game. We therefore affirm Superior Court's ruling in that case.

In Commonwealth v. Two Electronic Poker Game Machines and One Electronic Blackjack Game Machine (Two Poker Games ) (No. 81 E.D. Appeal Dkt.1982) we must determine the authority of a court to order the seizure and forfeiture, under 18 Pa.C.S. § 5513(b) and 47 P.S. § 6-602, of devices found to have been used for gambling purposes but not found to be gambling devices per se. Common Pleas ordered the forfeiture after appellant King Amusement Company failed to produce any evidence that the machines were being lawfully used or that it had no knowledge of the unlawful use. Appellant claims that it is clothed with a "presumption of innocence" and therefore need not introduce evidence as to the machine's lawful use or its lack of knowledge of unlawful use. Common Pleas rejected this argument, as did Superior Court in affirming the Common Pleas' order of forfeiture. We believe Common Pleas properly exercised its discretion under the statute, and that the Commonwealth's evidence was sufficient to support the forfeiture order, and thus we affirm.

While these cases have been consolidated for appeal, each arises from a distinct set of facts and will be separately considered. Because our determination in Electro-Sport is controlling in One Poker Game, we consider the former case first.

I

ELECTRO-SPORT

No. 68 W.D. Appeal Docket 1982

A

On March 11, 1980, a criminal complaint was filed against a tavern owner in Neville Township, Allegheny County, charging him with maintaining a device used for gambling purposes in violation of 18 Pa.C.S. § 5513(a)(1) ¹ and seeking the seizure and forfeiture of the machine pursuant to 18 Pa.C.S. § 5513(b). ² The complaint alleged that the machine, an Electro-Sport Draw Poker Machine, was a gambling device per se. RR-5a. No allegation was made that the machine had been used for gambling purposes. The tavern owner filed a Motion for Return of Property under Pa.R.Crim.P. 324 to determine whether the seizure of the machine was lawful.

Following a hearing before Allegheny County Common Pleas, that court ruled that the Electro-Sport Draw Poker Machine was not a gambling device per se, finding that the machine was essentially an electronic deck of cards and that the elements of a result determined by chance and a reward, necessary for the finding of a gambling device per se, were not present. Common Pleas therefore granted the Motion for Return of Property. Superior Court affirmed, agreeing with Common Pleas' findings and going on to hold that the Electro-Sport machine required substantial skill for successful play, that free games did not constitute a sufficient reward, and that the presence of a multiple-coin feature, a "knockdown" button, and a meter to record the number of games knocked down did not render the machine a gambling device per se. Electro-Sport, 297 Pa.Superior Ct. 54, 443 A.2d 295 (1981).

The physical characteristics of the Electro-Sport machine and its method of play are not in dispute. It is a coin operated video game which simulates some elements of five card draw poker. A microprocessor, through the operation of a random number generation program, simulates the shuffling of a deck of cards and the dealing of one hand of five card draw poker. The player can insert from one to eight coins to begin play. Although only one coin is necessary to play a game, the insertion of multiple coins increases the number of "skill points" awarded to a winning hand--and hence increases the number of free games which can be won. The insertion of more than one coin does not have any effect on the odds of winning, nor is it represented to the player that it does so. ³

"Skill points" are awarded for various combinations of cards, ranging from one point for a pair of aces to fifty points for a straight flush. The "hands" are created by "standing pat" on the five cards initially "dealt" or by drawing cards by indicating which cards the player wants to discard. The odds are precisely the same as those in an ordinary game of poker, and can only be changed by replacing the integrated circuitry. The player does not play against the machine, but rather seeks to maximize his hand and hence the awarded "skill points."

The Commonwealth argues that the Electro-Sport machine is "predominantly and preeminently a game of chance." Brief of Appellant at 17. While conceding that knowledge of probabilities may increase a player's chance of winning, the Commonwealth contends that the outcome is ultimately determined by chance, unlike a "bona fide amusement device" on which the outcome is determined solely by skill. Brief of Appellant at 18. Finally the Commonwealth contends that the presence of the "knock down" switch and a meter to record the free games cancelled, which have no legitimate purpose and are so closely associated with payoffs, provide ample circumstantial evidence to prove by a preponderance of the evidence that such a machine is a gambling device per se. For the reasons which follow, we agree that the facts of this case, when read against the applicable precedents, support the Commonwealth's position.

B

Historically, we have held a machine is a gambling device per se if it can be used for no purpose other than gambling. Nu-Ken Novelty, Inc. v. Heller, 220 Pa.Superior Ct. 431, 288 A.2d 919 (1972). This broad standard must be interpreted to provide a meaningful test for judging a given machine. If it is to be useful, it cannot mean that the machine could not possibly be used for any activity other than gambling, because almost any machine, including the Electro-Sport, can be used for non-gambling (e.g., pure amusement) purposes. Instead, the inquiry must be whether the machine is "so intrinsically connected with gambling" as to constitute a gambling device per se. Nu-Ken, supra, at 433, 288 A.2d at 920 (1972). See also Friedberg Appeal, 208 Pa.Superior Ct. 312, 222 A.2d 509 (1966); American Legion Post 51 Appeal, 188 Pa.Superior Ct. 480, 149 A.2d 483, aff'd per curiam, 397 Pa. 430, 156 A.2d 107 (1959), appeal dismissed, 363 U.S. 720, 80 S.Ct. 1596, 4 L.Ed.2d 1521 (1960). Such a determination will turn on the characteristics of the machine when read against the three elements necessary to gambling: consideration, a result determined by chance rather than skill, and a reward. If the machine displays all three qualities, it will then be "so intrinsically connected with gambling" as to be a gambling device per se.

There is no dispute that a player must insert a coin to activate the Electro-Sport machine. Thus the element of consideration is present.

Whether the result is determined by chance poses a far more difficult question. Superior Court, citing Nu-Ken, supra, and In re Wigton, 151 Pa.Superior Ct. 337, 30 A.2d 352 (1943), stated the standard to be that:

In order to conclude that a machine is a gambling device per se, it is necessary to find that successful play is entirely a matter of chance as opposed to skill.

Electro-Sport, supra, 297 Pa. at 58, 443 A.2d at 297 (emphasis added). Initially, we note that the cited cases do not stand for the proposition that success be entirely a matter of chance. Rather, they hold that...