Attorney general Michelle Henry has filed an appeal with the Pennsylvania Supreme Court seeking a review of a lower state court’s ruling that skill-game machines are not illegal, according to the filing obtained by Vixio GamblingCompliance.
The Commonwealth Court in Harrisburg ruled en banc on November 30 that unregulated "Pennsylvania Skill" machines manufactured by Pace-O-Matic (POM) and distributed by Capital Vending Company Inc. to convenience stores and bars across the state were a game of predominant skill, not a game of chance.
“The POM machines at issue in this case are not slot machines as commonly defined,” wrote Commonwealth Court Judge Lori Dumas. “Accordingly, these electronic games are not illegal per se.”
Dumas also said that “POM machines are not gambling devices and, therefore, do not constitute derivative contraband.” She wrote that the court's judges “discern no legal error in the trial court’s determination that the POM machines are primarily games of skill, and thus, not gambling devices.”
However, Henry’s office continues to believe that so-called skill games are slot machines.
“The machines at issue here are video recreations — simulations — of traditional physical slot machines,” Henry wrote in her 71-page filing. “They spin, play, and pay just like the modern electronic slot machines found in casinos today.
“Yet the Commonwealth Court insists the machines here are not slot machines, because they occasionally flash a tiny, faint link to a hidden peripheral game that most players would never even notice, a ‘game’ that if played consists of a tedious, 12-minute-long memory drill, and that if 'won' delivers not a jackpot, but only the return of the last bet plus a ‘bonus’ of, at most, 20 cents.”
In Pennsylvania, Henry wrote, the legislature has determined that only licensed casinos can operate slot machines.
“Not even the state’s own lottery system, let alone private parties, can do so,” she added.
The case stems from agents with the Pennsylvania State Police and Bureau of Liquor Control Enforcement (BCLE) in 2019 seizing three POM machines, a green bag containing $525, and seven receipts from Champions Sports Bar in Dauphin County.
According to the BLCE, the POM machines were gambling devices, and the $525 and receipts were derivative contraband.
“The Commonwealth Court's en banc decision will have sweeping effect in Pennsylvania, where thousands of these machines are proliferating across the state, in bars, in convenience stores, and even in casino-style gambling halls — all without any special licensing, regulation, or taxation,” Henry wrote.
Henry said that her office believes the Commonwealth Court decision was wrong on two levels.
“One, it perverts this court's well-established ‘predominant factor’ test for assessing gambling devices under the Crimes Code. Two, it disregards the legislature's explicit definition of a slot machine in the Gaming Act, which the court refused to read in pari materia with the Crimes Code's own explicit reference to slot machines.”
“Under this court's precedent, if it acts like a slot machine and operates like a slot machine, it's a slot machine,” she added.
Although the court’s decision, for now, blocks any seizures of the Pace-O-Matic machines from Pennsylvania locations, it does not settle an ongoing legislative debate over whether so-called skill-game machines should be regulated or declared illegal through statutory change.
Senate Bill 969, which would add skill games to the list of illegal gambling devices under state law, remains on the agenda of the Pennsylvania Senate Judiciary Committee. On the other hand, Senate Bill 706, which is pending in the Senate Community, Economic & Recreational Development Committee, would regulate and tax the terminals.
The state's Senate is scheduled to reconvene in Harrisburg on February 5. Currently, there are estimated to be more than 80,000 unregulated machines in Pennsylvania.
“I am not surprised that the attorney general’s office is seeking an appeal of the Commonwealth Court ruling, as they stated they would do so,” Matt Haverstick, lead counsel for Pace-O-Matic in Pennsylvania, told Vixio in an email on Friday (January 5).
“The content of the brief includes the same tired, baseless, and weak arguments,” Haverstick said. “The Commonwealth Court ruled that skill games are legal games of skill because, objectively, that is what they are. We will continue to rightfully, and confidently, defend the legality of skill games in Pennsylvania.”
Carrie Nork Minelli, a spokeswoman with Parx Casino owned by Greenwood Racing, confirmed the Pennsylvania casino industry did file an amicus brief asking the state's Supreme Court to take up the appeal.
“Greenwood is part of that,” Minelli told Vixio in an email. “Otherwise, we can’t comment on ongoing litigation.”