In re Three Pa. Skill Amusement Devices

• Docket Number: 707 C.D. 2023
• Decision Date: 30 November 2023
• Parties: In re: Three Pennsylvania Skill Amusement Devices, One Green Bank Bag Containing $525.00 in U.S. Currency, and Seven Receipts Appeal of: Commonwealth of Pennsylvania
• Court: Pennsylvania Commonwealth Court

1

In re: Three Pennsylvania Skill Amusement Devices, One Green Bank Bag Containing $525.00 in U.S. Currency, and Seven Receipts Appeal of: Commonwealth of Pennsylvania

No. 707 C.D. 2023

Commonwealth Court of Pennsylvania

November 30, 2023

Argued: October 11, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge PATRICIA A. McCULLOUGH, Judge MICHAEL H. WOJCIK, Judge CHRISTINE FIZZANO CANNON, Judge ELLEN CEISLER, Judge LORI A DUMAS, Judge STACY WALLACE, Judge

OPINION

LORI A. DUMAS, Judge

The Office of the Attorney General of the Commonwealth of Pennsylvania (the Commonwealth) appeals from the order entered in the Court of Common Pleas of Dauphin County (trial court) on March 23, 2023, granting the petition for return of property filed by Capital Vending Company, Inc. (Capital Vending) and Champions Sports Bar, LLC (Champions Bar) (collectively, Appellees). After careful review, we affirm.

I. BACKGROUND^[1]

On December 9, 2019, agents of the Pennsylvania State Police, Bureau of Liquor Control Enforcement (BLCE), seized three amusement devices (POM machines),^[2] a green bag containing $525.00 in currency, and seven receipts from Champions Bar. According to BLCE, the POM machines were gambling devices per se, and the $525.00 and receipts were derivative contraband.

The POM machines have a single game with multiple themes. Gameplay commences when a player inserts money into the machine. The money is converted into points/credits,^[3] with $1 equaling 100 points. Following completion of gameplay, the player may redeem any remaining credits by pressing the "redeem" button, which generates a ticket that the player can exchange for currency. The player can decide how many points to commit to a play, from 8 to 400 points, and can preview the upcoming puzzle before committing the points. The first phase of the game is a "tic-tac-toe" type puzzle with nine symbols arranged in rows of three. The object of the game is for the player to match three similar symbols in a row on as many pay lines as possible, arranged horizontally, vertically, and/or diagonally.

There are three outcomes: (1) the puzzle can be solved, resulting in an award equal to 105% of the committed points (a win); (2) the puzzle can be solved, resulting in an award less than 105% of the committed points (a hit); and (3) the puzzle cannot be solved (a loss). After a hit or loss, the player is offered an opportunity to recoup lost points with the "Follow Me" feature. During the "Follow Me" portion of the game, the player tries to repeat a pattern of multiple, multicolored circles. If the player repeats the pattern correctly, the game restores the points lost, plus an additional five percent.

No criminal charges were filed related to the seizure, but the Commonwealth issued Champions Bar an administrative citation for permitting gambling. Appellees filed a petition for return of property pursuant to 42 Pa.C.S. § 5806 and Pennsylvania Rule of Criminal Procedure 588, Pa.R.Crim.P. 588, arguing that the POM machines are not gambling devices per se but are predominantly games of skill.

The trial court held evidentiary hearings after which the trial court invited the parties to submit proposed findings of fact and conclusions of law. On March 23, 2023, the trial court issued an opinion and order granting Appellees' petition for return of property. The trial court further ordered the Commonwealth to return the seized property within five days. The Commonwealth timely appealed to the Superior Court of Pennsylvania, which transferred the matter to this Court.

II. ISSUES

The Commonwealth raises two issues for our review. First, the Commonwealth contends that the POM machines are "slot machines," which are prohibited under the Crimes Code, 18 Pa.C.S. § 5513(a). Second, the Commonwealth argues that the POM machines are gambling devices per se.^[4]

III. DISCUSSION^[5]

A. Introduction

1. Section 5513 of the Crimes Code

In this case, the parties dispute the proper interpretation of Section 5513 of the Crimes Code, which was relied upon by BLCE in seizing the POM machines. A person is guilty of a first-degree misdemeanor if he "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." 18 Pa.C.S. § 5513(a). Electronic versions of these devices that offer simulated gambling programs are also prohibited. See 18 Pa.C.S. § 5513(a.1). Any gambling device that is used in violation of the provisions of the statute shall be seized and forfeited to the Commonwealth. 18 Pa.C.S. § 5513(b).

2. Forfeiture Proceedings in General

Anyone aggrieved by the seizure of property may move for the return of the property by motion. 42 Pa.C.S. § 5806(a)(1); see also Pa.R.Crim.P. 588(A). If the motion is granted, "the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited." Pa.R.Crim.P. 588(B).

"[T]he moving party must establish by a preponderance of the evidence entitlement to lawful possession. Once that is established, unless there is countervailing evidence to defeat the claim, the moving party is entitled to the return of the identified property." Singleton v. Johnson, 929 A.2d 1224, 1227 (Pa. Cmwlth. 2007). A claim can be defeated if an opposing party can establish that it is entitled to lawful possession of the property or if the Commonwealth can establish that the property is contraband. See id. at 1227 (citing Commonwealth v. Crespo, 884 A.2d 960 (Pa. Cmwlth. 2005)). "If the Commonwealth seeks to defeat the claim, it bears the burden to prove, by a preponderance of the evidence, that the items are either 'contraband per se' or 'derivative contraband,' and therefore should not be returned to the moving party." Commonwealth v. Trainer, 287 A.3d 960, 964 (Pa. Cmwlth. 2022).

"To meet its burden to defeat the motion for return of property, the Commonwealth must make out more than simply demonstrating that the property was in the possession of someone who has engaged in criminal conduct. It must establish a specific nexus between the property and the criminal activity." Singleton, 929 A.2d at 1227 (citations omitted). "When the Commonwealth sustains that burden, the burden of proof shifts to the property owner to disprove the Commonwealth's evidence or establish statutory defenses to avoid forfeiture." See id. (citing Commonwealth v. 1992 Chevrolet, 844 A.2d 583, 585 (Pa. Cmwlth. 2004)).

B. Whether the POM Machines are Slot Machines^[6]

1. The Parties' Arguments

The Commonwealth contends that there are four distinct categories of devices prohibited under the Crimes Code: punch cards, drawing cards, slot machines, and "any device to be used for gambling purposes." Commonwealth's Br. at 15 (citing 18 Pa.C.S. § 5513(a)(1)). According to the Commonwealth, the first three are inherently gambling devices and per se illegal. Id. The final category, the Commonwealth suggests, is a catch-all category that requires proof of use because it may include objects that are not inherently created for gambling purposes. Id.

Within this framework, the Commonwealth asserts that the seized POM machines are plainly slot machines and, thus, illegal. See id. at 17-24. Noting that the Crimes Code has not defined the term "slot machine," the Commonwealth relies on a standard dictionary definition but further directs our attention to a definition provided in the Gaming Act. See id. at 17-18.

According to the Commonwealth, it is appropriate to read the Crimes Code in pari materia with the Gaming Act because these acts "necessarily go hand-in-hand" and because the Gaming Act serves as a limited legislative exception to conduct otherwise deemed illegal. See id. 18-20. Thus, the Commonwealth argues, the definition of a slot machine under the Crimes Code must be the same as, or perhaps even broader than, the Gaming Act definition. According to the Commonwealth, a narrow definition of "slot machine" would undermine the "primary objective" of the General Assembly "to protect the public through regulation and policing of all activities involving gaming and practices that continue to be unlawful. Id. at 21 (quoting 4 Pa.C.S. § 1102(1)).

For these reasons, the Commonwealth urges that the POM machines are subject to seizure and forfeiture under 18 Pa.C.S. § 5513(b).

In response, Appellees reject the Commonwealth's interpretation of Section 5513(a). See Appellees' Br. at 35. According to Appellees, the statute does not proscribe slot machines in the abstract but only those slot machines manufactured or sold for gambling purposes. See id. at 35-38. Nevertheless, Appellees maintain that the POM machines are not slot machines under the Crimes Code, because they are games of skill with an additional "Follow Me" feature absent from slot machines. See id. at 61, 70. Further, Appellees contend that it is inappropriate to consider any principles of statutory interpretation because the Commonwealth has not alleged an ambiguity in the statute. See id. at 44-47. Finally, Appellees assert that it is inappropriate to read the Crimes Code and Gaming Act in pari materia, because they relate to different classes of things: the Crimes Code is concerned with illegal gambling, while the Gaming Act regulates licensed, legal gambling. See id. at 47-48.

2. The POM Machines are not Slot Machines

"The touchstone of interpreting statutory language is to ascertain and effectuate the intent of the legislature." Summit Sch., Inc. v. Dep't of Educ., 108 A.3d 192, 196 (Pa. Cmwlth. 2015); 1 Pa.C.S. § 1921(a). It is a "guiding principle of...