POM of PA v. Dep't of Rev.; Apl. of: Dep't of Rev.

[J-96-2025, J-97-2025] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

IN RE: THREE PENNSYLVANIA SKILL : No. 50 MAP 2024 AMUSEMENT DEVICES, ONE GREEN : BANK BAG CONTAINING $525.00 IN U.S. : Appeal from the Order of the CURRENCY, AND SEVEN RECEIPTS : Commonwealth Court at No. 707 CD : 2023 entered on November 30, : 2023, Affirming the Lower Court APPEAL OF: COMMONWEALTH OF : Order of the Dauphin County Court PENNSYLVANIA : of Common Pleas at No. 2022-CV- : 06333-MD entered on March 23, : 2023 : : ARGUED: November 20, 2025 POM OF PENNSYLVANIA, LLC : No. 2 EAP 2024 : : Appeal from the Order of the v. : Commonwealth Court entered on : January 16, 2024, at No. 418 MD : 2018.

COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF REVENUE, AND CITY : ARGUED: November 20, 2025 OF PHILADELPHIA, : : : APPEAL OF: COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : REVENUE :

OPINION

JUSTICE WECHT DECIDED: June 15, 2026 This opinion addresses separate appeals from decisions of the Commonwealth Court, both of which concern the legal status of so-called “skill game” devices under Pennsylvania law. The Commonwealth, via the Department of Revenue, challenges the Commonwealth Court’s decision in POM of Pennsylvania, LLC v. Department of Revenue, 221 A.3d 717 (Pa. Cmwlth. 2019) (en banc) (“POM”), wherein the intermediate court declared that unlicensed operation of the devices is not subject to regulation under the Gaming Act.1 In the second appeal, the Commonwealth challenges the court’s decision in In re: Three Pennsylvania Skill Amusement Devices, One Green Bank Bag Containing $525.00 in U.S. Currency, and Seven Receipts, 306 A.3d 432 (Pa. Cmwlth.

2023) (en banc) (“Three Devices”), wherein the Commonwealth Court concluded that the unlicensed operation of the devices also is not prohibited by Section 5513(a) of the Crimes Code.2 The Commonwealth Court’s decisions in POM and Three Devices are the central pillars upon which rests the current state of affairs in this Commonwealth, in which “skill game” devices have been held to fall into a legal gray area outside of the reach of both the Gaming Act and the Crimes Code. Thriving therein, the devices now may be found not only in taverns, restaurants, and social clubs, but also in mini-marts, gas stations, grocery stores, laundromats, pizza parlors, and various other establishments throughout Pennsylvania—even some dedicated solely to the purpose. However, the Commonwealth Court’s interpretation of the governing statutes, upon which the legal status quo wholly depends, is deeply flawed. The Commonwealth Court was incorrect on both points. Under a plain reading of the law, “skill game” devices are subject to both

[J-96-2025, J-97-2025] - 2 the Gaming Act and the Crimes Code. We accordingly reverse the orders of the Commonwealth Court in both POM and Three Devices.

We recognize, as we have in the past, that many throughout Pennsylvania have placed reasonable reliance upon the Commonwealth Court’s decisions on the lawfulness of the subject devices.3 We are further mindful of the potential disturbance that our correction of the prevailing case law may cause to business owners and other good-faith participants in the industry. We thus stay our order for a period of 120 days. During this 120-day period of safe harbor, no law enforcement agency is to take adverse action against owners or operators of “skill game” devices in reliance upon this opinion.

Naturally, because all that follows is a consequence of statutory law, our General Assembly also remains free at any time to take whatever legislative action it may deem appropriate. To that end, we emphasize that our decision today does not rely upon, and does not constitute an endorsement of, any particular policy view concerning the proliferation of “skill games” throughout our Commonwealth. Determining and manifesting the “public policy” of Pennsylvania is the prerogative of the legislative branch of our government, not this judicial branch, and it is a prerogative that the General Assembly already has exercised.4 To put it more plainly, how one feels about access to “skill games” or other types of slot machine—or about the broader legalization and

[J-96-2025, J-97-2025] - 3 normalization of gambling in our society, for that matter—is irrelevant. This is, rather, a matter of straightforward application of existing statutory law.

As discussed at length below, our General Assembly already has spoken clearly on this subject, particularly through a 2017 enactment that added new terms to the Gaming Act’s definition of a “slot machine,” i.e., “skill slot machine” and “hybrid slot machine,” which make abundantly clear that the “skill” element of the subject devices is not legally significant.5 That is to say, as it concerns their unregulated operation in unlicensed facilities throughout Pennsylvania, it is not this Court that declares “skill games” to be unlawful. Rather, it is the General Assembly that did so nearly a decade ago. If interested parties find the application of the General Assembly’s laws to be undesirable, the proper remedy lies with the same legislative body that wrote those laws.

The solution is not for courts to adopt strained and untenable readings of statutes to avoid their application.

Before discussing the reasoning of the Commonwealth Court in POM and Three Devices and the errors therein, it will be helpful to set forth the relevant statutory provisions, to detail their interaction with previous case law, and to become familiar with the nature of the “skill game” devices at issue. We thus turn first to these matters, in a roughly chronological fashion.

§ 1103 (defining “skill slot machine” as a “slot machine in which the skill of the player, rather than the element of chance, is the predominant factor in affecting the outcome of the game” and a “hybrid slot machine” as a “slot machine in which a combination of the skill of the player and elements of chance affect the outcome of the game.”) (added by Act 42 of 2017).

[J-96-2025, J-97-2025] - 4 I. Background A. Section 5513 of the Crimes Code As the earliest law relevant to the instant appeals, we begin with Section 5513 of the Crimes Code.6 Section 5513 provides, in relevant part: (a) Offense defined.--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 place under his control; (3) solicits or invites any person to visit any unlawful gambling place for the purpose of gambling; or (4) being the owner, tenant, lessee or occupant of any premises, knowingly permits or suffers the same, or any part thereof, to be used for the purpose of unlawful gambling.7 Section 5513(b) authorizes the confiscation and forfeiture of “[a]ny gambling device possessed or used in violation of the provisions of subsection (a).”8 Although Section 5513 prohibits numerous actions connected to the manufacture or operation of a “slot machine” or “any device to be used for gambling purposes,” the

1482, No. 334, and made effective on June 6, 1973. However, Section 5513 has statutory precursors that date back to 1860, which similarly prohibited devices used for “unlawful gaming.” See Appeal of Mills Novelty Co., 175 A. 548, 548-49 (Pa. 1934) (addressing Act of March 31, 1860, P.L. 398, § 60, 18 P.S. § 1445 (repealed)); Nu-Ken Novelty, Inc. v. Heller, 288 A.2d 919, 919-20 (Pa. Super. 1972) (same).

[J-96-2025, J-97-2025] - 5 statute does not provide definitions for those terms. Section 5513 also leaves the phrase “unlawful gambling” undefined.9 Section 5513 does, however, specify what it does not prohibit. Section 5513(e.1) provides a list of activities that are specifically authorized by other, later-enacted statutes, and it declares: (e.1) Construction.--Nothing in this section shall be construed to prohibit any activity that is lawfully conducted under any of the following: (1) The act of August 26, 1971 (P.L. 351, No. 91), known as the State Lottery Law.

(2) The act of July 10, 1981 (P.L. 214, No. 67), known as the Bingo Law.

(3) The act of December 19, 1988 (P.L. 1262, No. 156), known as the Local Option Small Games of Chance Act.

(4) 4 Pa.C.S. (relating to amusements).10 “4 Pa.C.S. (relating to amusements)” refers to Title 4 of the Pennsylvania Consolidated Statutes. Importantly, Title 4 is the location of the Gaming Act.11 Therefore, Section 5513(e.1)(4) makes clear that activities “lawfully conducted” under the Gaming

Therefore the term ‘unlawful,’ as used in Section 5513 means not specifically authorized by law.”). As the Superior Court there explained, this is a “reasonable common sense interpretation” of the word “unlawful.” Id. 10 18 Pa.C.S. § 5513(e.1) (emphasis added).

[J-96-2025, J-97-2025] - 6 Act are not unlawful under Section 5513(a), notwithstanding the latter’s general prohibitions relating to a “slot machine” or “any device to be used for gambling purposes.”

B. The “Predominant Factor Test” Long before the passage of the Gaming Act in 2004, the courts of this Commonwealth necessarily applied Section 5513 to various devices, often grappling with the meaning of the undefined phrase in Section 5513(a)(1)—“device to be used for gambling purposes”—and its more concise analog in Section 5513(b)—“gambling device.” This Court developed a legal standard for that inquiry, articulated most prominently in our decision in Commonwealth v. Two Electronic Poker Game Machines.12 Two Poker Machines addressed the question of “what constitutes a gambling device per se.”13 In relevant part, the Court considered whether a device called the “Electro-Sport,” which simulated aspects of the gameplay of five-card draw poker, constituted a gambling device per se. Previous lower court decisions had reasoned that a machine is a gambling device per se “if it can be used for no purpose other than gambling.”14 This Court disapproved of such an approach, reasoning that, if the legal standard 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.”15 “Instead,” the Court explained, “the inquiry

[J-96-2025, J-97-2025] - 7 must be whether the machine is ‘so intrinsically connected with gambling’ as to constitute a gambling device per se.”16 Evaluating whether a device is “intrinsically connected with gambling,” this Court held, “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.”17 “If the machine displays all three qualities, it will then be ‘so intrinsically connected with gambling’ as to be a gambling device per se.”18 The Electro-Sport satisfied the “consideration” and “reward” elements, but the second element—a result determined by chance rather than skill—posed “a far more difficult question.”19 Where the lower court had reasoned that the “chance” element required a finding that the game’s outcome be “entirely a matter of chance,”20 this Court found that standard impossibly rigid, stressing that nearly all games, even those that indisputably require significant skill and training, involve some element of luck or chance. The inquiry into what constitutes gambling, then, needed to account for “the relative amounts of skill and chance present in the play of each machine and the extent to which skill or chance determines the outcome.”21 The Electro-Sport simulated aspects of poker—a game that rewards an understanding of probabilities—so it was clear that “skill, in the form of knowledge of probabilities, can improve a player’s chances of winning and can maximize the size of the 16 Id. (citing Nu-Ken Novelty, 288 A.2d at 920; Friedberg Appeal, 222 A.2d 509 (Pa. Super. 1966); American Legion Post 51 Appeal, 149 A.2d 483 (Pa. Super. 1959)).

[J-96-2025, J-97-2025] - 8 winnings.”22 Nonetheless, this Court reasoned that “chance ultimately determines the outcome because chance determines the cards dealt and the cards from which one can draw—in short, a large random element is always present.”23 The Court added that the Electro-Sport lacked certain elements that skilled poker players employ in the real game, such as “holding, folding, bluffing and raising.”24 “Skill can improve the outcome in Electro-Sport; it cannot determine it.”25 From this analysis, Two Poker Machines concluded that the second element of gambling was met: “the element of chance predominates and the outcome is largely determined by chance.”26 This legal standard for evaluating the second element of gambling—skill versus chance—has come to be known as the “predominant factor test.”

As our Commonwealth Court has explained succinctly, “[r]egarding the second factor, the Pennsylvania Supreme Court set forth the ‘predominate factor test,’ which states that, for a machine to constitute a gambling machine, it must be a game where chance predominates rather than skill.”27 Under this test, therefore, if the skill of the player is the

[J-96-2025, J-97-2025] - 9 “predominant factor” that determines the “outcome” of the game, then the device is not a gambling device per se.

C. The “Skill Game” The predominant factor test provides the explanation for the existence of so-called “skill games.” The idea is that, because of the presence of a skill element, the device may, per the predominant factor test, be deemed to fall outside the definition of a “gambling device” for purposes of Section 5513 of the Crimes Code, even if the use of the device otherwise bears the hallmarks of gambling. For instance, there is no dispute that individuals who use these “skill game” devices spend their money in order to play, i.e., consideration, and that they do so in the hope of obtaining more money than they wager and to profit thereby, i.e., reward.28 It is solely the skill-versus-chance distinction that purports to remove the devices from the scope of Section 5513 of the Crimes Code. In both appeals before this Court, the device at issue is called the “Pennsylvania Skill Amusement Device,” which utilizes software distributed by POM of Pennsylvania, LLC (“POM”).29 Before proceeding any further, it is necessary to have some 28 See Two Poker Machines, 465 A.2d at 977 (identifying “the three elements necessary to gambling: consideration, a result determined by chance rather than skill, and a reward”); see also POM, Petition for Review ¶ 44 (“For purposes of this Petition only, POM does not dispute the consideration and reward elements.”); POM, 221 A.3d at (“POM also states that for the purposes of its petition it does not dispute that its game requires consideration to play and provides a reward.”).

[J-96-2025, J-97-2025] - 10 understanding of this device and the legal arguments regarding its features. Although certain parties before this Court take issue with each other’s characterizations of various features of the device (particularly in the Three Devices appeal), there is no meaningful factual dispute as to its operation.30 The device outwardly resembles a modern, electronic version of a slot machine, featuring a set of three virtually spinning reels, on which a player hopes to create winning combinations of three matching symbols. A “pay table” is displayed next to the reels, which informs the player of the potential payouts connected to each winning combination of symbols. A player inserts cash into the device, which is converted into points equal to one cent, i.e., one dollar equals 100 points. The player can decide how many points to wager on a given spin, ranging from real-dollar amounts of $0.08 to $4.00 per play. The device, however, only pays out in whole dollar amounts, rounding down to the nearest whole dollar. The device allows the player to preview the upcoming spin before deciding how much to wager, but the player cannot change the outcome of the next spin, i.e., it either will allow a winning combination of symbols or it will not, and the player has no control over that result.

The main gameplay contains an interactive component, but this is not the “skill” element of arguable legal significance. The “primary game” or “base game” is what POM describes as a “‘Tic-Tac-Toe’ style puzzle,” because winning combinations of three symbols may be arranged vertically, horizontally, or diagonally, as in Tic-Tac-Toe.31 After the player presses the “play” button and the virtual reels spin, the player can change one

[J-96-2025, J-97-2025] - 11 symbol to a “wild” symbol to create a set of three matching symbols. Thus, for instance, if a row has two matching symbols, the player can turn the third, non-matching symbol “wild” to produce a winning combination. Although the placement of the “wild” symbol creates the impression that the player is controlling the outcome, this is not the “skill” element from which the device takes its name. As the trial court in Three Devices found: “The puzzle portion of the game is predominately reliant on chance. Although a player has the opportunity to interact with the game to place a wild symbol, there is nothing that a player can do to ensure that the reels show a puzzle that can be correctly solved.” 32 That is, each play in the base game either will allow a winning combination or it will not, and that outcome is preordained by chance.33 The legally relevant skill element comes into play whenever a spin in the base game produces a loss, or the player “wins” an amount less than the wager, specifically less than 105% of the amount wagered on a given spin. The player then is given the opportunity to use an additional feature called “Follow Me.” “Follow Me” is a memory test reminiscent of the game “Simon.”34 The player is presented with a three-by-three grid of colored dots, which flash in a random sequence that the player must recall and reproduce.

The entire exercise consists of twenty-five rounds, with each round adding another step

[J-96-2025, J-97-2025] - 12 that the player must remember.35 By the end of “Follow Me,” the player must correctly reproduce a sequence of twenty-five steps. Upon successful completion of this task, the player receives 105% of the amount wagered in the base game. Thus, using the “Follow Me” feature, a successful player can avoid realizing a loss on any given play of the base game.

The parties to the Three Devices appeal differ, to say the least, as to how “Follow Me” should be characterized. The Commonwealth contends that the feature is designed to be ignored, as “Follow Me” is not mentioned or explained in the device’s general instructions, and the feature can be accessed only by clicking a cryptic and unexplained prompt—“Touch Here to Follow Me”—which appears for only a few seconds after a losing spin, and only after the option to play the base game returns.36 “No one walks up to these things to play ‘Follow Me,’” the Commonwealth asserts, “because no one walking up even knows there is a ‘Follow Me.’”37 The Commonwealth further asserts that the device discourages the use of the feature because “Follow Me” is tedious and unreasonably difficult; deliberately slows gameplay by imposing multiple “intermissions” between rounds where nothing happens for approximately fourteen seconds; takes approximately twelve minutes to complete in total, compared to mere seconds to play the base game; and awards only a few cents in excess of the player’s lost wager (at most twenty cents, on a maximum bet of four dollars).38 Thus, the Commonwealth contends, “Follow Me” is “an obvious fig leaf, included to cloak the game’s primary purpose as a gambling

[J-96-2025, J-97-2025] - 13 device.”39 Most pithily, the Commonwealth suggests that “‘Follow Me’ isn’t there for the players; it’s there for the lawyers.”40 That is, “Follow Me” exists to provide a legal hook for the application of the predominant factor test, to allow a conclusion that skill can control the outcome and that the device is, therefore, not a “gambling device” under Section 5513 of the Crimes Code. The Appellees in Three Devices, which are businesses that share both POM’s legal position and its legal counsel, take issue with the Commonwealth’s characterizations of “Follow Me” and its ostensible purpose. They do not, however, challenge any particular factual representation as to how the feature operates. Rather, the Appellees emphasize that the trial court in Three Devices found the Commonwealth’s expert witnesses to be biased in favor of finding the devices unlawful, and that the Commonwealth failed to produce adequate evidence of how players typically use the device. The Appellees, thus, strenuously oppose the Commonwealth’s claim that “no one” plays “Follow Me,” and they dispute the suggestion that “Follow Me” is “tedious” or “boring,” particularly given its similarity to the game “Simon,” which “people have been spending money on for nearly fifty years for no purpose other than the entertainment of play.”41 We explain this all at the outset because understanding “Follow Me” is crucial to comprehending why these devices are called “skill games” in the first place, and why— according to their proponents and the Commonwealth Court—they are not, as they appear, “slot machines” or otherwise “gambling devices” for purposes of Section 5513 of the Crimes Code. The inclusion of the “Follow Me” feature into the device has sufficed to convince multiple courts that, under the predominant factor test, the outcome of gameplay

[J-96-2025, J-97-2025] - 14 is predominantly reliant upon skill rather than chance, such that the device is not a gambling device for purposes of Section 5513. This was precisely the reasoning of the trial court in Three Devices, which found that, although the base game is predominantly controlled by chance, it was undisputed that “a patient and skillful player could win at least 105% of the amount played on each and every play by utilizing the Follow Me feature.” 42 Notably, despite the parties’ vociferous disagreement as to what we might glean of typical gameplay or the designer’s intentions for such, the trial court expressly declined to consider the common use of the device, reasoning that the owner or distributor of the device has no control over how people play it.43 Rather, for purposes of the predominant factor test, the court found it dispositive that there is a hypothetical possibility for players to use their skill at “Follow Me” to control the outcome of every play, regardless of whether that is actually a common occurrence in the real world.

Similar reasoning prevailed in a decision of the Court of Common Pleas of Beaver County in 2014, in which the court concluded that the “Pennsylvania Skill Amusement Device” is not a gambling device for purposes of Section 5513, per the predominant factor test.44 That decision is important not for its precedential value, but for its role in the history and development of the “skill game” industry in Pennsylvania. Following the Beaver County case in 2014, the device surged in popularity, as POM and its industry partners touted the ruling in the Beaver County case in their efforts to assure potential customers 42 Three Devices, Trial Ct. Op., 3/23/2023, at 8.

[J-96-2025, J-97-2025] - 15 of the device’s legality.45 The growing market in “skill game” devices did not escape the attention of the General Assembly, which, in 2017, made substantial revisions to the Gaming Act that significantly bear upon the disposition of these appeals.

D. The Gaming Act and Act 42 of 2017 The Gaming Act, as originally enacted in 2004, legalized and provided a comprehensive regulatory scheme for the operation of slot machines in Pennsylvania casinos. Although the Act first authorized only slot machines, it was expanded in 2010 to authorize table games at licensed casinos, such as poker, blackjack, roulette, etc.46 The Act was expanded again through Act 42 of 2017 to authorize several new forms of lawful gambling, such as “interactive gaming” and “sports wagering.”47 45 See Better Bets Ventures, 332 A.3d at 1209 (recounting a “skill game” operator’s explanation that he had been approached by a manufacturer with a copy of the Beaver County case in order to assure him of the legality of the “Pennsylvania Skill” device). The website for the “Pennsylvania Skill” device, under a tab entitled “A Legal and Defendable Game of Skill,” similarly emphasizes the Beaver County case as a significant court decision indicative of the legality of the device under Pennsylvania law. See https://pomworks.com/paskill/pennsylvania-skill-legal/ (last visited June 8, 2026) (“In 2014, Pace-O-Matic introduced its Pennsylvania Skill game into Pennsylvania by providing a game terminal to the Pennsylvania State Police for evaluation and confirmation that it was a legal game of skill. It was subsequently agreed to submit the game to a Pennsylvania Court to determine the legality of the game. After reviewing the Pennsylvania Skill game, the Court of Common Pleas of Beaver County ruled that it is a legal game of predominant skill under Pennsylvania law. The Commonwealth never appealed that decision. Thereafter, Pace-O-Matic provided Pennsylvanians and small businesses and fraternal organizations throughout the Commonwealth with the support and entertainment of Pennsylvania Skill games. Pace-O-Matic was, and remains, the only manufacturer of skill games who stands behind the legality of its products with a legal guarantee to indemnify operators and locations where our games are played against any claims that our games are being operated in violation of state or local laws.”); see also POM, Petition for Review ¶ 56 (“POM stands behind the Skill Game and assures distributors and assures customers that the Skill Game is legal under state law and regulations, in Pennsylvania.”).

48 4 Pa.C.S. § 1102(1).

51 Slot machine licenses under the Gaming Act come in several different varieties: Category 1 (for licensed racetrack facilities); Category 2 (for stand-alone casinos permitted in specified locations); Category 3 (for resort hotels); and, as of Act 42, Category 4 (for a limited number of smaller facilities to operate between 300-750 slot machines). See 4 Pa.C.S. §§ 1302, 1304, 1305, 1305.1. Obtaining a slot machine license is a costly endeavor. A Category 1 or Category 2 license, for instance, requires an initial licensing fee of $50 million. See 4 Pa.C.S. § 1209(a); Greenwood Gaming and Entertainment, Inc. v. Department of Revenue, 306 A.3d 319, 330 n.13 (Pa. 2023) (discussing license fees under the Gaming Act). This expense likely was intended to advance another of the ancillary objectives that the General Assembly specified in the Gaming Act, i.e., “to provide a significant source of new revenue to the Commonwealth to support property tax relief, wage tax reduction, economic development opportunities and other similar initiatives.” 4 Pa.C.S. § 1102(3).

[J-96-2025, J-97-2025] - 17 The Gaming Act expressly declares itself to be a carveout from the prohibitions of Section 5513 of the Crimes Code. Section 1903(a)(2) of the Gaming Act provides that the “provisions of 18 Pa.C.S. § 5513(a) are repealed insofar as they are inconsistent with this part.”52 This provision hearkens to Section 5513(e.1)(4), which reciprocally carves out lawful activities under Title 4, i.e., the Gaming Act. These mutual cross-references reinforce that the “limited gaming” authorized by the Gaming Act, particularly “slot machine”53 gaming, is lawful under Section 5513 of the Crimes Code only to the extent that it is lawful under the Gaming Act.

Importantly for present purposes, the Gaming Act provides a definition for the term “slot machine.” Throughout the litigation in both appeals before this Court, the definition of a “slot machine” has provided, in relevant part, as follows: “Slot machine.”

(1) The term includes: (i) Any mechanical, electrical or computerized contrivance, terminal, machine or other device approved by the Pennsylvania Gaming Control Board which, upon insertion of a coin, bill, ticket, token or similar object therein or upon payment of any consideration whatsoever, including the use of any electronic payment system except a credit card or debit card, is available to play or operate, the play or operation of which, whether by reason of skill or application of the element of chance or both: (A) May deliver or entitle the person or persons playing or operating the contrivance, terminal, machine or other device to receive cash, billets, tickets, tokens or electronic credits to be exchanged for cash or to receive merchandise or anything of value whatsoever, whether the payoff is made automatically from the machine or manually.

(B) May utilize spinning reels or video displays or both.

52 4 Pa.C.S. § 1903(a)(2).

53 18 Pa.C.S. § 5513(a)(1).

[J-96-2025, J-97-2025] - 18 (C) May or may not dispense coins, tickets or tokens to winning patrons.

(D) May use an electronic credit system for receiving wagers and making payouts.

(ii) Associated equipment necessary to conduct the operation of the contrivance, terminal, machine or other device.

(iii) A skill slot machine, hybrid slot machine and the devices or associated equipment necessary to conduct the operation of a skill slot machine or hybrid slot machine.54 “Skill slot machine” and “hybrid slot machine” were additions of Act 42 of 2017, made a part of the Gaming Act well after the Beaver County case in 2014 and after the POM devices began to proliferate in business establishments throughout Pennsylvania.

The terms also are separately defined. A “skill slot machine” is a “slot machine in which the skill of the player, rather than the element of chance, is the predominant factor in affecting the outcome of the game,” and a “hybrid slot machine” is a “slot machine in which a combination of the skill of the player and elements of chance affect the outcome of the game.”55 Given our discussion above, it should be immediately apparent that these new definitions are an unmistakable reference to the predominant factor test. Indeed, the definition of “skill slot machine” expressly uses the phrase “predominant factor.” The characterizations of skill or chance affecting the “outcome” of the game are similar embodiments of the inquiry that courts conduct under the predominant factor test.56 When combined, these definitions make clear that, for purposes of defining a “slot 54 4 Pa.C.S. § 1103 (defining “slot machine”) (emphasis added).

55 Id. (defining “skill slot machine” and “hybrid slot machine”).

56 See Two Poker Machines, 465 A.2d at 978 (“[T]he element of chance predominates and the outcome is largely determined by chance”) (emphasis added).

[J-96-2025, J-97-2025] - 19 machine” under the Gaming Act, it is irrelevant whether the outcome of a game is determined by skill, chance, or any combination thereof. If skill predominates, then the device is a “skill slot machine.” If skill and chance both contribute to the outcome, then the device is a “hybrid slot machine.” In any event, both variants of devices constitute “slot machines” under section (1)(iii) of the definition in the Gaming Act.

Arguably, any distinction between skill and chance has been irrelevant to the definition of a “slot machine” from the beginning, given that the language—“whether by reason of skill or application of the element of chance or both”—has been present in the general definition of “slot machine” since the original passage of the Gaming Act in 2004.

Nonetheless, it is particularly telling that, once courts began finding that the “skill game” devices at issue are lawful to operate in unlicensed facilities under the predominant factor test, the General Assembly specifically added the definitions of “skill slot machine” and “hybrid slot machine” to the definition of a “slot machine,” using language that can be understood as nothing other than an incorporation of the predominant factor test.

Although the changes brought about by Act 42 of 2017 appeared to pose a significant threat to the legal status of “skill game” devices, their proponents were not deterred. Instead, the argument became that the Gaming Act is wholly inapplicable to the devices. It was this argument that the Commonwealth Court considered, and ultimately adopted, in POM.

II. Lower Court Decisions A. POM Throughout 2017 and 2018, law enforcement officials began seizing POM’s “skill game” devices from various establishments in Philadelphia, arresting employees, and seizing funds connected to the operation of the devices. These actions prompted POM to file a petition for review in the Commonwealth Court’s original jurisdiction, seeking

[J-96-2025, J-97-2025] - 20 declaratory and injunctive relief on the premise that its device is “not an illegal gambling device under Pennsylvania law,” but rather is “a legal game of skill.”57 POM named as respondents the City of Philadelphia and the Department of Revenue, contending that the latter was an interested party because the seizure of the devices deprived the Commonwealth of revenue from sales and income taxes.

The Department counterclaimed, asserting, inter alia, that POM’s device is a “slot machine” under the Gaming Act, and that POM has been acting in violation of the Gaming Act by serving as both a “manufacturer” and a “supplier” of slot machines without having obtained the required licenses. Further connecting the matter to an issue more in its bailiwick, the Department stressed that slot machines are subject to a heightened tax rate of 34% of their daily gross terminal revenue, and it thus was POM, not law enforcement, that was depriving the Commonwealth of tax revenue by failing to comply with the Gaming Act.58 The Department sought declarations to that effect, as well as an order requiring POM to remove its devices from all establishments in Pennsylvania and to cease their sale and distribution, unless and until POM obtains the proper licenses.59 The Department ultimately filed an application for summary relief in the nature of a motion for judgment on the pleadings with respect to its counterclaim, asking the Commonwealth Court to declare that POM’s device is a “slot machine” under the Gaming Act, that POM is a “manufacturer” and/or “supplier” of slot machines under the Gaming Act, and that POM thereby is acting in violation of the Gaming Act.

57 POM, Petition for Review ¶ 29.

58 POM, Department’s Counterclaim ¶ 23 (“Under the Gaming Act, slot machines are subject to a daily tax of 34% of their gross terminal revenue and a local share assessment.”) (citing 4 Pa.C.S. § 1403(b)); ¶ 24 (“POM is not currently paying this tax, however, and is thereby violating the Gaming Act and depriving the Commonwealth, as well as the counties and municipalities in which its [devices] are situated, of revenue.”).

59 See POM, Department’s Counterclaim ¶¶ 51-52.

[J-96-2025, J-97-2025] - 21 In addressing the Department’s application, the Commonwealth Court first readily agreed with the Department that POM’s device is, indeed, a “slot machine” under the Gaming Act. Hinting at its ultimate rationale, however, the court framed the inquiry with a caveat. The court reasoned that it first was required to determine, “if the Gaming Act applies to unlicensed slot machines,” whether the device then meets that definition.60 The court reviewed the definition of a “slot machine” in the Gaming Act, along with the definitions of “skill slot machine” and “hybrid slot machine” added by Act 42 of 2017, as discussed above.61 Appreciating the import of those new terms, the court explained that, “if a player must primarily use skill to affect the game’s result, it is considered a ‘skill slot machine,’” and if “the skill of the player is not the primary factor, but outcome of the game is affected by both skill and chance, it is a ‘hybrid slot machine.’”62 By POM’s own averments in its petition, the Commonwealth Court observed, its device is “a coin-operated video machine that provides a reward of up to a combined total of 105% of the original amount spent to play,” and POM did not dispute that its device required consideration and provided a reward.63 Thus, the court reasoned: Because POM alleges that its game requires consideration to play, provides something of value, and is skill-based, if POM’s activities are subject to the Gaming Act, then the POM Game fits within the definition of “slot machine” under the Gaming Act. Similarly, since POM alleges that players of the POM Game must use skill, if the Gaming Act applies to unlicensed games

60 POM, 221 A.3d at 724. As the Commonwealth Court explained: “If the POM Games do not fit within the definitions, our analysis ends at this stage because the Gaming Act would not apply to the POM Game under any circumstances. On the other hand, if the POM Game does fit within the slot machine definitions, we will next determine whether the Gaming Act applies to unlicensed slot machines like the POM Game.” Id. 61 See supra nn. 54-55 and accompanying text; 4 Pa.C.S. § 1103.

62 POM, 221 A.3d at 725 (capitalization modified).

63 Id. (citing Petition for Review ¶¶ 13, 28, 44).

[J-96-2025, J-97-2025] - 22 then the POM Game would fit within the definition of “skill slot machine” under the Act.64 For similar reasons, the Commonwealth Court opined that POM meets the Gaming Act’s definitions of both a “manufacturer” and a “supplier” of slot machines. A “manufacturer” of slot machines is a “person who manufactures, builds, rebuilds, fabricates, assembles, produces, programs, designs or otherwise makes modifications to any slot machine.”65 Pursuant to POM’s own representations in its petition, the Commonwealth Court concluded that, “if the Gaming Act applies to POM’s activities,” then “POM is a ‘manufacturer’ of slot machines because it alleges that it ‘designs . . . the essential components’ of the POM Game.”66 A “supplier” of slot machines is a “person that sells, leases, offers or otherwise provides, distributes or services any slot machine . . . in this Commonwealth.”67 Again, the Commonwealth Court reasoned, “if the Gaming Act were to apply to POM’s activities, POM’s factual allegations would also establish POM as a ‘supplier’ of slot machines,” given that POM averred that it “distributes” software for, and “sells the essential components” of, the device.68 Having concluded that POM’s device is a “slot machine” and that POM is both a “manufacturer” and “supplier” of slot machines under the Gaming Act, the Commonwealth Court turned to what it deemed to be the “one dispositive question remaining,” i.e., “whether the Gaming Act applies to POM’s conduct.”69 This, in turn, the Commonwealth Court treated as a question of legislative intent as to whether the Gaming Act was meant 64 Id. (emphasis added; capitalization modified).

65 Id. (quoting 4 Pa.C.S. § 1103) (emphasis omitted).

66 Id. (emphasis added; capitalization modified).

67 Id. (quoting 4 Pa.C.S. § 1103) (emphasis omitted).

68 Id. (emphasis added; capitalization modified).

69 Id. at 725-26.

[J-96-2025, J-97-2025] - 23 to apply to “both legal and illegal gambling.”70 The court looked first to several provisions of Section 1102 of the Gaming Act, i.e., the “legislative intent” provision, giving particular attention to two subsections that refer to limited gaming “as authorized in this part,” i.e., the Gaming Act.71 The court further highlighted a subsection that declares the General Assembly’s intent to authorize the combined operation of slot machines, table games, and interactive gaming “under a single slot machine license issued to a slot machine licensee when a slot machine licensee has been issued a table game operation certificate and an interactive gaming certificate under this part.”72 From these provisions, the Commonwealth Court gathered that the “intent of the Gaming Act is to protect the public from unlawful gaming activity, enhance live horse racing, breeding programs, entertainment and employment, and to regulate licensed slot machines when the licensee has been issued a table game operation certificate and an interactive gaming certificate.”73 POM’s device, the Commonwealth Court declared, is “not used for any of the noted activities.”74 The court proceeded to analyze the Gaming Act’s definitions for “licensed entity,” “licensed facility,” “licensed gaming entity” and “slot machine licensee,” all of which refer to licenses.75 “Thus far,” the Commonwealth Court observed, “we see that a licensed entity is an entity that has obtained a license from the Gaming Control Board, and a licensed facility is a location where a licensed entity has been authorized by the Gaming

70 Id. at 726.

71 Id. at 726-27 (quoting 4 Pa.C.S. § 1102(2), (8)) (emphasis omitted).

72 Id. at 727 (quoting 4 Pa.C.S. § 1102(12)) (emphasis modified).

73 Id. (bold emphasis in original).

74 Id. 75 Id. (discussing 4 Pa.C.S. § 1103).

[J-96-2025, J-97-2025] - 24 Control Board to operate slot machines.”76 The Gaming Act’s stated need for licenses to conduct lawful operations, the court reasoned, stands in “stark contrast to POM’s status as an unlicensed entity.”77 The Commonwealth Court then proceeded through the classes of slot machine licenses provided in the Gaming Act,78 which the court understood as an indication of the “type of slot machine activities the Act is intended to regulate.”79 Bolding the word “licensed” for emphasis wherever it found it, the Commonwealth Court observed that slot machine licenses are only available to licensed racetrack facilities, casinos, and resort hotels. “Clearly,” the Commonwealth Court reasoned, the nature of these facilities provides an indication “that the Gaming Act was intended to authorize and regulate large- scale slot machine operations involving hundreds or thousands of slot machines, and there is no suggestion that the Act was ever intended to apply to devices in taverns, and/or social clubs, such as the game in question.”80 For its next ostensible clue to the General Assembly’s intent, the court looked to the scope of the Gaming Control Board’s authority. The Gaming Act directs the Board to “ensure the integrity of the acquisition and operation of slot machines” and grants it the “sole authority over every aspect of the authorization, operation, and play of slot machines.”81 Yet, the court emphasized that the Act also grants the Board “general and sole regulatory authority over the conduct of gaming and related activities as described

76 Id. (bold emphasis in original; comma omitted).

77 Id. 78 See supra n.51.

79 POM, 221 A.3d at 727.

80 Id. at 728.

81 Id. (quoting 4 Pa.C.S. § 1202(a)(1)).

[J-96-2025, J-97-2025] - 25 in this part,” i.e., the Gaming Act,82 and “conduct of gaming” is defined as the “licensed placement, operation and play of slot machines . . . under this part, as authorized and approved by” the Board.83 The Commonwealth Court reasoned that the references to the “conduct of gaming” and the activities described in “this part” served as limitations on the Board’s authority. “While these sections state that the Gaming Control Board has general and regulatory authority over slot machines, such authority must be viewed through the lens of the limiting clause stating that the Board has authority over the ‘conduct of gaming,’ as described in this part and which is defined as the licensed placement and operation of slot machines as authorized and approved by the Board.”84 The Commonwealth Court proceeded through several provisions that set forth specific powers of the Board, bolding for emphasis any use of the phrase “licensed entity” or “licensed facility.”85 Continuing in this vein, the Commonwealth Court noted that the Gaming Control Board’s Bureau of Investigations and Enforcement is given the specific power to investigate licensees and license applicants, and to “inspect and examine licensed entities.”86 This indicated to the Commonwealth Court that, “although the Bureau has the authority to investigate and inspect licensees, permittees, and licensed entities it does not have the authority to investigate and inspect unlicensed entities.”87

82 4 Pa.C.S. § 1202(a)(1) (emphasis added).

83 POM, 221 A.3d at 728 (quoting 4 Pa.C.S. § 1202(a)(1), 1103) (bold emphasis in original).

84 Id. (bold emphasis in original).

85 Id. at 728-29 (quoting 4 Pa.C.S. § 1207(1), (3), (9), (11), (21.1), (21.2)) (bold emphasis in original).

86 Id. at 729 (quoting 4 Pa.C.S. § 1517(a.1)(5)) (bold emphasis in original).

87 Id. at 730.

[J-96-2025, J-97-2025] - 26 Section 1518 of the Gaming Act sets forth various prohibited acts and imposes criminal liability for violations. Although numerous subsections prohibit “any person” or “any other person” from engaging in certain actions, the Commonwealth Court concluded that these provisions likewise applied only to “licensed entities” and “licensed facilities.”

Section 1518(a)(3), the court noted, states that it is unlawful for “any licensed entity . . . or any other person to permit a slot machine to be operated, transported, repaired or opened on the premises of a licensed facility by a person other than a person licensed or permitted by the [Board] pursuant to this part.”88 Similarly, under Section 1518(a)(4), as the court read it, it is unlawful “for any licensed entity or other person to manufacture, supply or place slot machines into play or display slot machines on the premises of a licensed facility without the authority” of the Board.89 It was from these provisions that the Commonwealth Court drew one of the more significant articulations of its central conclusion: “[A]lthough the Act makes it unlawful to place slot machines on the premises of a licensed facility without the authority of the Gaming Control Board, it does not make it unlawful to place a slot machine in an unlicensed location.”90 The Commonwealth Court further declared that “neither Section 1518 nor any other provision in the Gaming Act makes it unlawful for any person to manufacture, supply, or place slot machines at unlicensed facilities or generally unlawful to display or operate slot machines when not authorized by the Gaming Control Board.”91 88 Id. at 729 (quoting 4 Pa.C.S. § 1518(a)(3)) (bold emphasis in original). The POM court omitted certain language from its quotation of Section 1518(a)(3) without noting the omissions with an ellipsis or otherwise.

89 Id. (quoting 4 Pa.C.S. § 1518(a)(4)) (bold emphasis in original). The POM court also omitted language from Section 1518(a)(4). The full text of this provision is provided below, see infra n.170 and accompanying text.

90 POM, 221 A.3d at 730 (bold emphasis in original).

91 Id. at 732. (bold emphasis in original; capitalization modified).

[J-96-2025, J-97-2025] - 27 The Commonwealth Court insisted that the Department’s legal position required a determination that the Gaming Act regulates “both legal and illegal gambling.”92 Illegal gambling, the court reasoned, is the purview of Section 5513 of the Crimes Code, and, per Section 1903(a)(2) of the Gaming Act, Section 5513 is only repealed to the extent that it is “inconsistent with” the Gaming Act.93 In the Commonwealth Court’s view, this raised a question as to “whether the General Assembly intended for the Gaming Act to comprehensively regulate all gambling in the Commonwealth and, thus, apply to both legal and illegal gambling.”94 Ultimately, the Commonwealth Court determined that “the Gaming Act does not apply to unlicensed and/or illegal slot machines.”95 The court opined: [T]he Gaming Act was intended to license slot machine operations at racetracks, casinos, hotels, and established resort hotels. Thus, its intent was to provide licenses to large, individual slot machine operations that raise millions of dollars in revenue. The POM Games are not located at any of these types of facilities and there is absolutely no suggestion in these provisions of the Gaming Act, or any other provisions of the Act, that the Gaming Act was intended to apply to the facilities where the POM Games are located, e.g., taverns and social clubs, or that the Gaming Act regulates the placement of slot machines at such facilities.96 The court then reiterated much of its earlier analysis, which it used to support its conclusion that “the Gaming Act specifically regulates licensed slot machines in licensed facilities.”97 The Commonwealth Court proceeded again through many of the above-

92 Id. at 730.

93 See supra n.52 and accompanying text.

94 POM, 221 A.3d at 730.

95 Id. at 731.

96 Id. 97 Id. (bold emphasis in original).

[J-96-2025, J-97-2025] - 28 discussed statutory provisions, again boldfacing for emphasis numerous uses of the word “licensed,” “authorized” or “approved” by the Board, etc.98 “Due to the language in the Gaming Act discussing the regulation of licensed slot machines and facilities,” the Commonwealth Court declared that it “simply cannot glean any intention by the General Assembly for the Gaming Act to regulate all unlicensed and illegal slot machines in the Commonwealth.”99 The Commonwealth Court further sought to bolster its conclusion with a discussion of legislative history. The court quoted a legislator’s floor statement in 2004, in which he defended the bill that would become the Gaming Act from an accusation that the original purpose of the bill changed.100 From this, the Commonwealth Court gathered that the Gaming Act’s intent always was to raise revenue to support the horse-racing industry, and the “legislative history does not demonstrate that the General Assembly intended for the Gaming Act to regulate all unlicensed and/or illegal slot machines then existing in the Commonwealth.”101 In a similar vein, the Commonwealth Court noted that, during the debate on the bill that would become Act 42 of 2017, the prime sponsor of the bill, Representative Jason Ortitay, was asked whether he “believes that the language in this bill will make illegal all games of skill in the [Commonwealth] of Pennsylvania that currently exist, all the ones that exist currently at truckstops and convenience stores and social

98 See id. at 731-33.

99 Id. at 733.

100 See generally PA. CONST. art. III, § 1 (“No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose.”).

101 POM, 221 A.3d at 734.

[J-96-2025, J-97-2025] - 29 clubs.” Representative Ortitay replied: “I do not believe so, Mr. Speaker.”102 The Commonwealth Court took this as another indication that “that unlicensed slot machines and/or slot machines that are not approved by the Gaming Control Board, such as the POM Game, are not subject to the Gaming Act.”103 Finally, the Commonwealth Court opined that its conclusion was “enhanced by an analysis of whether the General Assembly intended the Gaming Act to supplant the Crimes Code’s regulation of unlicensed slot machines and illegal gambling devices.”104 The court turned to a discussion of the judicial presumption against the implied repeal of statutes.105 The Commonwealth Court suggested that the Department’s position would necessitate a conclusion that the Gaming Act “establishes a uniform system for all gambling” in Pennsylvania, whether legal or illegal, which “would effectively supersede and displace” the prohibition of illegal gambling in Section 5513(a) of the Crimes Code.106 Yet, the Commonwealth Court claimed, “there is nothing in the Gaming Act that suggests that it purported to revise all statutes governing illegal gambling, set up a general or exclusive system covering the entire subject matter of gambling, or establish a uniform and mandatory system encompassing all gambling.”107 Given the “strong presumption against implied repeals of statutes and the lack of an irreconcilable conflict” between the Gaming Act and Section 5513, the Commonwealth Court declared that it would “decline

102 Id. at 734 (quoting Legislative Journal—House, 201st Sess., Oct. 25, 2017, at 1174) (bold emphasis omitted).

103 Id. at 734-35 (emphasis omitted).

104 Id. at 735.

105 Id. at 735-36.

106 Id. at 736.

107 Id.

[J-96-2025, J-97-2025] - 30 to conclude that the Gaming Act impliedly repealed the Crimes Code’s regulation of illegal gambling devices and slot machines.”108 Accordingly, the Commonwealth Court concluded that “the plain language of the Gaming Act indicates that the General Assembly did not intend for the Gaming Act to regulate unlicensed slot machines which fall outside the ambit of the licensed facilities clearly delineated by the Gaming Act, and/or supplant the Crimes Code’s regulation of the same.”109 Thus, the court opined, “the POM Game is not subject to the Gaming Act.”110 The court thus denied the Department’s application for summary relief.

108 Id. 109 Id. 110 Id. Because the Commonwealth Court concluded that the Gaming Act does not apply to the POM device, it rejected POM’s suggestion that the Department failed to join the Gaming Control Board as an indispensable party to its counterclaim. The court noted that an analysis of whether a party is indispensable turns upon whether the party has “a right or interest related to the claim.” Id. at 736 n.18. Having concluded that the device is not subject to the Gaming Act at all, the Commonwealth Court reasoned that “the Gaming Control Board has no regulatory authority regarding the POM Game,” and, thus, “does not have a right or interest” related to the litigation. Id. Because “the failure to join an indispensable party implicates a court’s subject matter jurisdiction,” Simone v. Alam, 333 A.3d 359, 364 (Pa. 2025), our disagreement as to the applicability of the Gaming Act may raise a jurisdictional question for the Commonwealth Court. However, as the appeal arrives before this Court, the Gaming Control Board is not an indispensable party to the litigation precisely because of the Commonwealth Court’s determination on the applicability of the Gaming Act, the merits of which we review at present. It is not until after this Court reverses the Commonwealth Court’s decision on the merits, for the reasons that follow, that the question of the Gaming Control Board’s status as an indispensable party again becomes relevant. Accordingly, we decline at this juncture to vacate the Commonwealth Court’s ruling on jurisdictional grounds or otherwise to dispose of this appeal without a merits ruling, because the determination of the Gaming Control Board’s interest is inseparable from a ruling on the merits of the Commonwealth Court’s rationale. Additionally, given the protracted nature of this consequential litigation and the fact that it took several years before the Commonwealth Court produced a final, appealable order for this Court’s review, it would be a disservice to our law to allow more time to elapse without a conclusive ruling on the application of the governing statutes to the subject devices. We leave any outstanding questions of jurisdiction or indispensable-party status to the lower court on remand.

[J-96-2025, J-97-2025] - 31 B. Three Devices Despite repeatedly referring to the device at issue as an “illegal slot machine,”111 the Commonwealth Court in POM expressly left open the question of whether unlicensed operation of the device is prohibited under Section 5513 of the Crimes Code.112 The Commonwealth Court, again sitting en banc, would confront that question in Three Devices.

On December 9, 2019, agents of the Pennsylvania State Police, Bureau of Liquor Control Enforcement seized three POM devices from Champions Sports Bar in Dauphin County, along with a green bag containing $525.00 in currency and seven receipts. The devices had been provided to the bar by Capital Vending Company, Inc.113 The agents contended that the POM devices were illegal gambling devices under Section 5513(a) of the Crimes Code, and that the cash and receipts were derivative contraband. No criminal charges were filed as a result of the seizure, but the Commonwealth sought forfeiture of the seized items under Section 5513(b) and issued an administrative citation to the bar for permitting unlawful gambling on its premises.

The Appellees filed a petition for return of property in the Dauphin County Court of Common Pleas,114 contending that the devices are not unlawful under Section 5513(a) of

111 POM, 221 A.3d at 730, 731, 732, 733, 734, 736.

112 See id. at 735 n.17 (“Of course, we do not answer the separate question of whether the POM Game qualifies as an illegal gambling device under [S]ection 5513 of the Crimes Code, which both parties appear to acknowledge presents a question of fact that requires factual discovery to resolve.”). The POM court did not comment upon the fact that Section 5513(a)(1) also applies to a “slot machine.”

113 The Commonwealth collectively referred to Champions Sports Bar, LLC, and Capital Vending Company, Inc., as the “Appellees.” Because they remain the appellees in the instant appeal, we will use the same designation.

114 See 42 Pa.C.S. § 5806; Pa.R.Crim.P. 588 (providing for motions for return of property).

[J-96-2025, J-97-2025] - 32 the Crimes Code because they are predominantly games of skill, not chance. The trial court held a series of evidentiary hearings at which the parties presented dueling expert opinions as to the proper classification of the devices. As we discussed above while detailing the operation and features of the devices,115 the trial court ultimately concluded that, per the predominant factor test, the devices are not unlawful gambling devices under Section 5513. The court ordered the seized property to be returned to the Appellees.

On appeal to the Commonwealth Court, the Commonwealth asserted two separate grounds to conclude that the devices are unlawful under Section 5513(a)—that they are “slot machines” for purposes of that subsection, or alternatively that they are otherwise “gambling devices per se” under the predominant factor test.116 Again, Section 5513(a)(1) provides that 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.”117 As it concerned the classification of the POM device as a “slot machine,” the Commonwealth Court “readily” rejected the Commonwealth’s arguments.118 The court stressed that the term “slot machine” is not defined in the Crimes Code. Looking to a dictionary definition, the court stated that a “slot machine is commonly construed as a ‘coin-operated gambling machine that pays off according to the matching of symbols on wheels spun by a handle,’” or “electronic version[s] of the machine.”119 The 115 See supra Part I(C) of this opinion.

116 Three Devices, 306 A.3d at 436.

117 18 Pa.C.S. § 5513(a)(1) (emphasis added); see also supra Part I(A) of this opinion.

118 Three Devices, 306 A.3d at 440.

119 Id. (citing Merriam-Webster’s online dictionary definition for “slot machine,” https://www.merriam-webster.com/dictionary/slot%20machine).

[J-96-2025, J-97-2025] - 33 Commonwealth Court claimed that the POM device does not fit within this definition.

Referring to the “base game” or what POM calls the “Tic-Tac-Toe style puzzle,” the Commonwealth Court acknowledged that the “first stage in gameplay may be analogous to the experience that a slot machine offers.”120 Nonetheless, referring to the “Follow Me” feature, the court reasoned that the devices “also integrate a memory game into the overall gameplay experience that requires a player to focus on a sequence of multicolored shapes and then recall the sequence correctly”—an “additional feature” of the POM devices that “distinguishes them from the common definition of a slot machine.”121 The Commonwealth also contended that the term “slot machine” should be read in pari materia122 with the Gaming Act, which, as we have seen, provides a definition for a “slot machine.” The Commonwealth Court rejected the suggestion, reasoning that statutes are in pari materia when they “relate to the same persons or things or to the same class of persons or things.”123 “Here,” the Commonwealth Court declared, “the statutes do not relate to the same class of things: the Crimes Code regulates illegal gambling devices, and the Gaming Act regulates licensed gambling in the Commonwealth.”124 Regardless, the Commonwealth Court reasoned, the rule of in pari materia construction should be invoked only where statutory language is ambiguous, and the court did not 120 Id. 121 Id. 122 “In pari materia” refers to “a canon of construction that statutes that are in pari materia may be construed together, so that inconsistencies in one statute may be resolved by looking at another statute on the same subject.” In pari materia, BLACK’S LAW DICTIONARY (12 ed. 2024). Under our Statutory Construction Act, “[s]tatutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things,” and “[s]tatutes in pari materia shall be construed together, if possible, as one statute.” 1 Pa.C.S. § 1932(a)-(b).

123 Three Devices, 306 A.3d at 440 (quoting 1 Pa.C.S. § 1932(a)).

124 Id.

[J-96-2025, J-97-2025] - 34 “discern any ambiguity” in the use of the term “slot machine” in Section 5513(a)(1).125 That is, according to the Commonwealth Court, a “slot machine” in Section 5513(a)(1) unambiguously refers to the common meaning of the term found in the dictionary definition that the court cited, and it is therefore unconnected to the definition of a “slot machine” provided in the Gaming Act. In any event, because Section 5513 is a penal statute, the court stated that any ambiguity therein should be resolved in favor of the accused.126 In sum, the Commonwealth Court concluded, “the POM machines are not slot machines as commonly defined,” and the court declined to “import a broad definition used to regulate legal gambling into this criminal statute.”127 The separate question of whether the device otherwise constitutes a “device to be used for gambling purposes,”128 i.e., a gambling device per se, necessitated the application of the predominant factor test.129 The Commonwealth Court reviewed the evidence presented to the trial court concerning the operation of the POM devices, the trial court’s findings of fact, and its credibility determinations. Most important to the Commonwealth Court, as it was to the trial court, was the agreement among all of the parties’ witnesses that, hypothetically, “a patient and skillful player could win at least 105% of the amount played on each and every play by utilizing the Follow Me feature.”130 Thus, even though the base game is “predominantly a game of chance,” the Commonwealth Court agreed with the trial court that “the fact that the Follow Me feature 125 Id. (citing Goodwin v. Goodwin, 280 A.3d 937, 948 n.7 (Pa. 2022)).

126 Id. at 441 (citing Commonwealth v. McCoy, 962 A.2d 1160, 1168 (Pa. 2009)).

127 Id. 128 18 Pa.C.S. § 5513(a)(1).

129 See supra Part I(B) of this opinion; Three Devices, 306 A.3d at 442-43 (discussing the predominant factor test).

130 Three Devices, 306 A.3d at 445 (quoting Trial Ct. Op., 3/23/2023, at 8).

[J-96-2025, J-97-2025] - 35 could be won every time and showed up every time a player won less than 105% of the amount played eliminated the chance element.”131 Accordingly, the Commonwealth Court found no legal error in the trial court’s application of the predominant factor test and its resultant conclusion that the POM device is not a gambling device per se.

Because it found that the POM device is not a “slot machine” or a gambling device per se for purposes of Section 5513 of the Crimes Code, the Commonwealth Court affirmed the trial court’s order to return the seized property.

III. Issues and Legal Standards Because the litigation in POM was commenced in the Commonwealth Court’s original jurisdiction, the Department of Revenue in POM appealed directly to this Court, once the Commonwealth Court issued a final, appealable order on January 16, 2024.132 The Department raises the following question for our review in the POM appeal: Did the Commonwealth Court erroneously conclude that the Gaming Act does not regulate unlicensed slot machines despite specific statutory provisions prohibiting a person from manufacturing or supplying a slot machine without a license?133

131 Id. 132 See 42 Pa.C.S. § 723(a) (“The Supreme Court shall have exclusive jurisdiction of appeals from final orders of the Commonwealth Court entered in any matter which was originally commenced in the Commonwealth Court . . . .”). We note that this Court quashed an earlier notice of appeal in the POM litigation on July 21, 2023, which was necessitated by the absence of a final order of the Commonwealth Court at that time.

See POM of Pennsylvania, LLC v. Dep’t of Revenue, 297 A.3d 1294 (Pa. July 21, 2023) (per curiam) (citing, inter alia, 42 Pa.C.S. § 723(a); Pa.R.A.P. 341(b) (defining a final order)).

133 POM, Department’s Br. at 7.

[J-96-2025, J-97-2025] - 36 The appeal in Three Devices arrived before this Court from our grant of allocatur, as the proceedings there originated in the Court of Common Pleas.134 In Three Devices, the Commonwealth raises the following questions: (1) Does an electronic slot machine cease to be an illegal “gambling device,” governed predominantly by chance, if the machine’s manufacturers embed into its programming a so-called “skill” element that is almost entirely hidden from view and is almost impossible to complete?

(2) Should gambling statutes governing “slot machines” be read in pari materia to supply an appropriate definition of the term?135 Both appeals before this Court turn upon questions of statutory interpretation.

Statutory interpretation is a pure question of law over which our scope of review is plenary and our standard of review is de novo.136 As in all such matters, we are guided by our Statutory Construction Act,137 pursuant to which the “object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.”138 “Generally, the plain language of the statute provides the best indication of legislative intent.”139 To that end, the Statutory Construction Act demands that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”140 Only when “the words of the statute 134 See 42 Pa.C.S. § 724(a).

135 Three Devices, 320 A.3d 673 (Pa. June 18, 2024) (per curiam).

136 Commonwealth v. Linton, 337 A.3d 467, 474 (Pa. 2025) (quoting Commonwealth v. Gamby, 283 A.3d 298, 304 (Pa. 2022)).

137 1 Pa.C.S. §§ 1501-1991.

138 Id. § 1921(a).

139 Commonwealth v. Crosby, 329 A.3d 1141, 1149 (Pa. 2025) (quoting Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016)) (internal quotation marks omitted).

140 1 Pa.C.S. § 1921(b).

[J-96-2025, J-97-2025] - 37 are not explicit” may a court proceed to consider other indicia of legislative intent.141 We must presume, inter alia, that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable,” that it “intends the entire statute to be effective and certain,” and that it “intends to favor the public interest as against any private interest.”142 Statutes “are in pari materia when they relate to the same persons or things or to the same class of persons or things,” in which case they “shall be construed together, if possible, as one statute.”143 IV. Analysis It is the combination of the Commonwealth Court’s reasoning in POM and Three Devices that accounts for the present legal status of so-called “skill games” as lying beyond the reach of both the Gaming Act and the Crimes Code. Under POM, the Gaming Act purportedly is inapplicable to the devices, to their unlicensed operators, or to the unlicensed locations in which they are operated, but POM left open that the devices nonetheless may be subject to Section 5513 of the Crimes Code. Three Devices closed that door when it reasoned that the devices fall outside the scope of Section 5513 as well.

Slot machines once were confined to casinos (i.e., “licensed facilities”) under the Gaming Act. However, in the wake of the Commonwealth Court’s decisions, slot machines—or devices that are identical to slot machines in appearance, operation, and function—may be used anywhere throughout this Commonwealth, and neither the Gaming Act, the Crimes Code, nor any authority responsible for enforcing those laws has any say over the matter. No one has explained why the General Assembly should be presumed to have

141 Id. § 1921(c).

142 Id. § 1922(1), (2), (5).

143 Id. § 1932(a), (b).

[J-96-2025, J-97-2025] - 38 intended this unusual state of affairs, particularly in the face of numerous statutory provisions that suggest the contrary intent.

A. The Commonwealth Court’s Reasoning The Commonwealth Court’s legal paradigm produces numerous incongruities, not least of which is the fact that the POM device has been declared to be simultaneously a “slot machine” and not a “slot machine.”144 This contradiction is emblematic of the central error in the Commonwealth Court’s reasoning: the court viewed the Gaming Act and the Crimes Code as islands unknown to each other rather than a unified statutory scheme.

According to the Three Devices court, the Gaming Act and the Crimes Code do not even “relate to the same class of things” because the Gaming Act concerns legal gambling and the Crimes Code concerns illegal gambling.145 To the contrary, these are not two entirely different subjects, but rather two sides of the same coin. As discussed above, the Gaming Act and Section 5513 of the Crimes Code work in tandem to identify the scope of lawful gambling activities, particularly as it concerns the lawful operation of slot machines. The statutes make this clear through their mutual cross-references.

Inexplicably, the court in neither POM nor Three Devices took note of Section 5513(e.1)—a subsection that holds the key to understanding the entire statutory scheme.146 Generally speaking, Section 5513(a) prohibits gambling in this Commonwealth, and it specifically addresses activities relating to a “slot machine.”147 Section 5513(e.1), however, provides a carveout for activities that are “lawfully

144 See POM, 221 A.3d at 724-25; Three Devices, 306 A.3d at 439-41.

145 Three Devices, 306 A.3d at 440; see also POM, 221 A.3d at 726, 730 (rejecting the suggestion that the Gaming Act applies to “both legal and illegal gambling”).

146 18 Pa.C.S. § 5513(e.1). See supra n.10 and accompanying text for the complete language of Section 5513(e.1).

147 18 Pa.C.S. § 5513(a)(1).

[J-96-2025, J-97-2025] - 39 conducted” under other statutory authorities, namely, the Gaming Act.148 The Gaming Act reinforces its symbiotic relationship with Section 5513 through a reciprocal cross- reference in Section 1903(a)(2), which provides that the provisions of Section 5513(a) are repealed, but only insofar as they are “inconsistent with” the Gaming Act.149 This indicates that the Gaming Act takes priority in determining what is lawful thereunder, but that the provisions of Section 5513(a) otherwise remain in effect. Together, Section 5513(e.1)(4) of the Crimes Code and Section 1903(a)(2) of the Gaming Act create a unified scheme.

Stated simply, activities that are “lawfully conducted” under the Gaming Act are therefore not prohibited under the Crimes Code,150 but an activity that is not lawful under the Gaming Act remains subject to Section 5513(a) of the Crimes Code. Thus, to take the Commonwealth’s challenge in Three Devices first, the Commonwealth Court erred in viewing the term “slot machine” in Section 5513(a)(1) as having a meaning wholly unrelated to the definition of a “slot machine” provided in the Gaming Act.151 As the Commonwealth asserts, the court’s error could be understood as a failure to read the statutes in pari materia, premised upon an unreasonably rigid distinction between legal and illegal gambling as constituting a different “class of things.”152 To the contrary, the Gaming Act and Section 5513 of the Crimes Code do 148 Id. § 5513(e.1)(4).

149 4 Pa.C.S. § 1903(a)(2).

150 18 Pa.C.S. § 5513(e.1)(4).

151 Three Devices, 306 A.3d at 441 (reasoning that “the POM machines are not slot machines as commonly defined, and we decline to import a broad definition used to regulate legal gambling into this criminal statute”).

152 Id. at 440 (“Statutes are in pari materia ‘when they relate to the same persons or things or to the same class of persons or things.’ Here, the statutes do not relate to the same class of things: the Crimes Code regulates illegal gambling devices, and the Gaming Act regulates licensed gambling in the Commonwealth.”) (quoting 1 Pa.C.S.

§ 1932(a); citation omitted).

[J-96-2025, J-97-2025] - 40 indeed relate to the same “things” or to the “same class of persons or things.”153 Both statutes relate to gambling, and particularly concern the use of slot machines. More importantly, however, given the express cross-referencing in the statutes, reading the term “slot machine” in Section 5513(a)(1) alongside the definition of that term in the Gaming Act is not even truly an instance of using the in pari materia rule as a canon of statutory construction. Rather, it is simply applying the plain language of the statutes.

Section 5513(a)(1) sets forth criminal prohibitions relating to slot machines, and Section 5513(e.1)(4) unambiguously tells us to look to the Gaming Act to determine whether activities concerning slot machines are “lawfully conducted.” To conclude, then, that the definition of a “slot machine” in Section 5513(a)(1) has nothing to do with the definition of a “slot machine” in the Gaming Act requires an unduly cramped reading of the statutory scheme.

We turn, then, to the Gaming Act and its applicability to POM’s “skill game” device.

The Commonwealth Court in POM, although recognizing that the device constitutes a “slot machine” (or, perhaps, a “skill slot machine”) under the definition provided in the Gaming Act, nonetheless concluded that the Gaming Act was inapplicable due to “POM’s status as an unlicensed entity.”154 Although the court proceeded at length to emphasize the frequent use of the word “licensed” in the Gaming Act, the court’s reasoning reduces to a simple proposition: that the Gaming Act only “regulates licensed slot machines in licensed facilities.”155 Therefore, the argument goes, because the Gaming Act “only

153 1 Pa.C.S. § 1932(a).

154 POM, 221 A.3d at 727.

155 Id. at 731 (emphasis omitted).

[J-96-2025, J-97-2025] - 41 applies to licensed slot machines in licensed entities/facilities,” the POM court asserted that it “does not apply to unlicensed and illegal devices,” such as the POM device.156 Assuming, arguendo, that the Commonwealth Court was correct about the scope of the Gaming Act, its suggestion leads to a uniquely peculiar outcome. It is true, in a general sense, that the Gaming Act concerns licensing for an activity that otherwise is unlawful (specifically, activity that is unlawful under Section 5513 of the Crimes Code, as we have seen). Indeed, such is the very purpose of a “license,” i.e., to obtain permission to do something that is otherwise impermissible.157 Yet, the POM court’s reasoning suggested that, precisely because the law governing licensing is addressed to the licensed activity, one need not be concerned with that law so long as one does not obtain a license. Thus, one is free to do the licensed activity without a license. But this, as should be obvious, subverts the entire purpose of a license.

Again, as it concerns “slot machines,” it is worth reiterating that the POM court did not rely upon any distinction between the elements of skill and chance (and could not after Act 42 of 2017), but rather concluded that, as far as the Gaming Act is concerned, “slot machines” may be operated without a license anywhere throughout Pennsylvania.158 By the POM court’s reasoning, although casinos must comply with an extensive licensing and regulatory scheme under the Gaming Act and the Gaming Control Board’s

156 Id. at 733.

157 See license, BLACK’S LAW DICTIONARY (12th ed. 2024) (“1. A privilege granted by a state or city upon the payment of a fee, the recipient of the privilege then being authorized to do some act or series of acts that would otherwise be impermissible. 2. A permission, usu. revocable, to commit some act that would otherwise be unlawful . . . . 3.

The certificate or document evidencing such permission.”).

158 See, e.g., POM, 221 A.3d at 730 ([A]lthough the Act makes it unlawful to place slot machines on the premises of a licensed facility without the authority of the Gaming Control Board, it does not make it unlawful to place a slot machine in an unlicensed location.”) (emphasis omitted).

[J-96-2025, J-97-2025] - 42 regulations, one could take all the slot machines out of a casino, set them up in one’s backyard, and proceed to operate an unlicensed casino. So long as one does not obtain a license, the Commonwealth Court reasons, one need not comply with the Gaming Act, because that law concerns only licensed activity. It is true that the Commonwealth Court, in a single footnote, left open the possibility that such actions may violate Section 5513 of the Crimes Code159—a possibility that remained until the Three Devices case. Yet, as it concerns so-called “skill games,” the tenor of the POM court’s decision suggested that there is nothing impermissible at all about their unlicensed operation in unlicensed facilities. And this is precisely how the proponents of such devices have understood the Commonwealth Court’s ruling.

Beyond the absurdity of this implication, the Commonwealth Court in POM also was simply wrong. The plain language of the Gaming Act reveals that it is not strictly limited to “licensed entities” and “licensed facilities.” The Gaming Act’s broader scope is apparent even in the provisions that the POM court cited. For instance, the definitions that the Gaming Act provides for “manufacturer” and “supplier,” which the POM court quoted in part, plainly cover the manufacture and supply of slot machines “in this Commonwealth,” not only with respect to those slot machines destined for “licensed facilities” or to be used by “licensed entities.”160 A “manufacturer license” and “supplier license” similarly are defined in terms of the manufacture and supply of slot machines “for

159 See id. at 735 n.17.

160 See 4 Pa.C.S. § 1103 (defining “manufacturer” as a “person who manufactures, builds, rebuilds, fabricates, assembles, produces, programs, designs or otherwise makes modifications to any slot machine . . . in this Commonwealth for gaming purposes”) (emphasis added); id. (defining “supplier” as a “person that sells, leases, offers or otherwise provides, distributes or services any slot machine . . . in this Commonwealth”) (emphasis added).

[J-96-2025, J-97-2025] - 43 use in this Commonwealth,” not merely for the use of “licensed entities” at “licensed facilities.”161 Perhaps most plainly illustrative of the Commonwealth Court’s error is Section 1317.1 of the Gaming Act, which addresses the requirements for obtaining a license to manufacture slot machines. Section 1317.1(e)(1) provides: “No person may manufacture slot machines . . . or associated equipment for use within this Commonwealth unless the person has been issued the appropriate manufacturer license under this section.”162 On its face, this provision demonstrates a far greater breadth to the Gaming Act than the Commonwealth Court allowed. “No person” is much broader than “licensed entity.” This provision also is not limited to a “licensed facility”; rather, its reach extends to “use within this Commonwealth.” This language demonstrates that the Commonwealth Court patently erred in its insistence that the Gaming Act “only applies to licensed slot machines in licensed entities/facilities.”163 The immediately following provision, Section 1317.1(e)(2), goes on to provide that, subject to an exception for training equipment, “no person may use slot machines . . . or associated equipment unless the slot machines . . . were manufactured by a person that has been issued the appropriate manufacturer license under this section.”164 Again, this broad provision applies to any “person,” not just to a “licensed entity.” A “person” who 161 See id. (defining “manufacturer license” as a “license issued by the Pennsylvania Gaming Control Board authorizing a manufacturer to manufacture or produce slot machines . . . for use in this Commonwealth for gaming purposes”) (emphasis added); id. (defining “supplier license” as a “license issued by the Pennsylvania Gaming Control Board authorizing a supplier to provide products or services related to slot machines . . . to slot machine licensees for use in this Commonwealth for gaming purposes”) (emphasis added).

162 4 Pa.C.S. § 1317.1(e)(1) (emphasis added).

163 POM, 221 A.3d at 733.

164 4 Pa.C.S. § 1317.1(e)(2) (emphasis added).

[J-96-2025, J-97-2025] - 44 “uses” an unauthorized slot machine anywhere within this Commonwealth violates Section 1317.1(e)(2). This restriction is not in any way limited to “licensed facilities.”

These provisions of the Gaming Act directly contradict the POM court’s declaration that “there is absolutely no suggestion . . . that the Gaming Act was intended to apply to the facilities where the POM Games are located, e.g., taverns and social clubs, or that the Gaming Act regulates the placement of slot machines at such facilities.” 165 Au contraire; numerous provisions do more than merely suggest such application.

Another such provision lies in Section 1518 of the Gaming Act. Although the POM court discussed certain provisions of Section 1518, ostensibly to demonstrate its applicability to “licensed entities” and “licensed facilities,”166 that section also significantly undercuts the court’s reasoning. Section 1518 sets forth numerous criminal offenses for violations of the Gaming Act. This observation, by itself, calls into doubt the rigid distinction that the POM and Three Devices courts drew between statutes that address legal gambling and those that concern illegal gambling.167 Section 1518 of the Gaming Act indeed contains many provisions addressed to “licensed entities” and “licensed facilities,” as the POM court highlighted. However, it also prohibits various acts committed by a “person,”168 or a “licensed entity or other person.”169 Again, on its face, these provisions illustrate that the Gaming Act applies to more than merely “licensed entities,” as the POM court suggested.

165 POM, 221 A.3d at 731.

166 Id. at 729, 732.

167 See id. at 726, 730; Three Devices, 306 A.3d at 440.

168 18 Pa.C.S. § 1518(a)(1), (a)(2), (a)(3.1), (a)(7.2), (a)(7.3), (a)(9), (a)(9.1).

169 Id. § 1518(a)(3), (a)(4), (a)(4.2), (a)(5) (emphasis added).

[J-96-2025, J-97-2025] - 45 Of particular significance is Section 1518(a)(4). The Department contends that POM violates Section 1518(a)(4) regularly—indeed, as a core component of its business model. Given this provision’s importance to the parties and to the POM court’s rationale, we consider its language in some depth. Section 1518(a)(4) provides, in full: It shall be unlawful for any licensed entity or other person to manufacture, supply or place slot machines, table games, table game devices or associated equipment, authorized interactive game or interactive gaming devices or associated equipment into play or display slot machines, table games, table game devices or associated equipment on the premises of a licensed facility without the authority of the board.170 Again, we can take note of the fact that Section 1518(a)(4) applies to a “licensed entity or other person,” which necessarily indicates that it applies to more than just licensed entities.171 The POM court noted Section 1518(a)(4), but emphasized the words “on the premises of a licensed facility,” which it understood as applying to each verb in the provision, i.e., “manufacture,” “supply,” “place,” and “display.” It is largely from the POM court’s interpretation of Section 1518(a)(4) that it court drew the conclusion that, although the Gaming Act “makes it unlawful to place slot machines on the premises of a licensed facility without the authority of the Gaming Control Board, it does not make it unlawful to place a slot machine in an unlicensed location.”172

170 Id. § 1518(a)(4).

171 This observation may not be so obvious to POM, which quotes Section 1518(a)(4) in its brief, bolds the words “licensed entity” and “licensed facility” for emphasis, then argues that “plain language of this provision proscribes unlawful activity for licensed entities who manufacture, supply, or place slot machines or other enumerated games at licensed facilities without the Board’s authority.” POM, POM’s Br. at 21-22. POM then concludes that “Section 1518 applies to licensed entities and facilities and does not purport to encompass POM Games and other skill games.” Id. at 22. Contrary to POM’s suggestion, placing the words “licensed entity” in boldface type does not make the words “or other person” disappear from the statute.

172 POM, 221 A.3d at 730 (emphasis omitted).

[J-96-2025, J-97-2025] - 46 The text of Section 1518(a)(4) demands a different conclusion. The referenced devices—“slot machines, table games, table game devices or associated equipment”— are listed twice within Section 1518(a)(4), connected with different verbs. The word “or” also separates the list of verbs twice. The provision states that it is unlawful for any licensed entity or other person to “manufacture, supply, or place slot machines . . . into play or display slot machines . . . on the premises of a licensed facility without the authority of the board.”173 The structure of the provision, and the fact that “display” is significantly offset from the other verbs and separately tethered to the listed devices, indicates that “on the premises of a licensed facility” applies to “display.” A contrary reading, moreover, would result in the nonsensical suggestion that the General Assembly intended to prohibit, for instance, the “manufacture” of slot machines “on the premises of a licensed facility,” such as setting up a slot machine factory on the floor of a casino. The more straightforward reading of Section 1518(a)(4) is that it is unlawful to do all of the following without the authority of the Board: (1) manufacture slot machines; (2) supply slot machines; (3) place slot machines into play; or (4) display slot machines on the premises of a licensed facility.

As noted, the Department contends that POM violates Section 1518(a)(4) of the Gaming Act as a matter of course.174 In analyzing this provision in some depth, our purpose is not to declare definitively whether POM is acting in violation of the criminal provisions of the Gaming Act. Rather, because Section 1518(a)(4) played a significant role in the POM court’s erroneous understanding of the Gaming Act, the more significant point for present purposes is a broader one. Both Section 1518 and Section 1317.1(e) 173 4 Pa.C.S. § 1518(a)(4) (emphasis added).

174 POM, Department’s Br. at 41 (“POM is in violation of Sections 1317.1(e)(1) and 1518(a)(4) because it is manufacturing and supplying slot machines without a license from the Board.”).

[J-96-2025, J-97-2025] - 47 provide ample evidence that the Commonwealth Court misapprehended the scope of the Gaming Act. The Gaming Act is not strictly limited to “licensed slot machines in licensed facilities.”175 There are numerous ways that unlicensed entities, such as POM, can violate provisions of the Gaming Act. The POM court’s core holding was premised upon the court’s misreading of fundamental aspects of the statutory scheme.

Although the POM court cited some other purported indicia of legislative intent, none rescue its holding from a finding of error. In discussing Section 1102 of the Gaming Act, the “legislative intent” provision, the POM court gave particular attention to Section 1102(8),176 which, the court reasoned, “does not state that it is the General Assembly’s intention to provide strict monitoring and enforced control over all gambling in the Commonwealth, whether legal or illegal, but merely that the General Assembly intended to strictly control the limited gaming authorized by the Gaming Act.”177 It is quite a stretch to reason that, because the General Assembly declared its intent to authorize only “limited gaming” and to strictly monitor and enforce control over that limited gaming through a licensing and regulatory scheme, that the General Assembly therefore intended gaming outside of licensed facilities to be an unregulated free-for-all. Such a conclusion also disregards the expressly stated “primary objective” of the Gaming Act “to which all other objectives and purposes are secondary,” i.e., “to protect the public through the regulation

175 POM, 221 A.3d at 731 (emphasis omitted).

176 4 Pa.C.S. § 1102(8) (“Strictly monitored and enforced control over all limited gaming authorized by this part shall be provided through regulation, licensing and appropriate enforcement actions of specified locations, persons, associations, practices, activities, licensees, permittees, registrants and certificate holders.”).

177 POM, 221 A.3d at 732 (emphasis omitted).

[J-96-2025, J-97-2025] - 48 and policing of all activities involving gaming and practices that continue to be unlawful.”178 The POM court additionally sought to glean some indication of legislative intent through its assessment of the available categories of slot machine licenses. Because such licenses are available only to large, well-capitalized ventures like “racetracks, casinos, hotels, and established resort hotels,” the POM court opined that the Gaming Act’s “intent was to provide licenses to large, individual slot machine operations that raise millions of dollars in revenue,” but not to regulate “the placement of slot machines” at small business establishments or social clubs.179 The court’s conclusion in this regard was not derived from any text of the Gaming Act, but rather only from what the court identified as commonalities among the entities that qualify for slot machine licenses.

Such reasoning also constitutes another variation of the absurd suggestion that one is free to engage in a licensed activity without a license because, so long as one does not have a license, he is not subject to the law governing licensing. The conclusion that the POM court drew is not only in tension with the expressly declared intent of the General Assembly to authorize only “limited gaming” and to regulate and police “all activities involving gaming,”180 but it is also, as we have seen above, contrary to the plain language of Sections 1317.1(e) and 1518(a)(4) of the Gaming Act, which do, in fact, address the placement of illegal slot machines in unlicensed facilities.

The POM court’s resort to legislative history fares no better. The court gave particular weight to a floor statement of a sponsor of Act 42 of 2017 who, when challenged that the bill would make “skill games” illegal, stated that he did not “believe” that would be

178 4 Pa.C.S. § 1102(1).

179 POM, 221 A.3d at 731.

180 4 Pa.C.S. § 1102(1), (2), (3), (3.1), (3.2), (4), (5), (6), (7), (8), (13).

[J-96-2025, J-97-2025] - 49 the case.181 It goes without saying that the floor statements of individual legislators are not the text of a statute, and they are not on a par with the text. It is the language of the statute that governs, not the impressions of any individual legislators. This remains true whether the cited legislator sponsored the bill, voted in favor of or against it, or otherwise.

We might just as easily rely upon the view of the other cited legislator who—no doubt referring to the definitions of “skill slot machine” and “hybrid slot machine” in Act 42 of 2017—stated that he “believes that the language in this bill will make illegal all games of skill” throughout Pennsylvania.182 Cherry-picking of this sort adds little to the interpretive endeavor, and the Commonwealth Court’s emphasis upon the isolated comment of Representative Ortitay is a quintessential example of “looking out over the cocktail party for one’s friends.”183 Finally, the POM court’s discussion of whether the Gaming Act “supersedes” Section 5513 of the Crimes Code, and its corollary discussion of the presumption against the implied repeal of statutes, wholly missed the mark.184 The Commonwealth Court stated that it found this analysis necessary because it needed to determine whether the Gaming Act was meant to regulate both “legal” and “illegal” gambling.185 This was a false choice. First of all, as discussed above, the Gaming Act does, indeed, regulate “illegal” gambling activities in numerous respects. Such regulation takes one particularly obvious

181 See POM, 221 A.3d at 734.

182 Id. 183 See Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) (“Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”).

184 See POM, 221 A.3d at 735-36.

185 Id. at 736.

[J-96-2025, J-97-2025] - 50 form in the articulation of dozens of criminal offenses in Section 1518.186 In any event, determining that POM and its “skill game” devices are subject to regulation under the Gaming Act does not in any way necessitate a conclusion that the Gaming Act “supersedes” or “impliedly repealed” Section 5513 of the Crimes Code.187 As discussed at length above, the Gaming Act and Section 5513 work together as a unified scheme, made clear by their express references to each other.188 Activities that are “lawfully conducted” under the Gaming Act are excluded from the criminal prohibitions of Section 5513, and, therefore, gambling activities that are not lawful under the Gaming Act remain subject to Section 5513.189 We need not consult any judicial presumptions or hunt for indicia of the General Assembly’s intent in this regard. The General Assembly stated its intent clearly.

In sum, the Commonwealth Court’s statutory interpretation was flawed in both POM and in Three Devices. The Gaming Act and Section 5513 of the Crimes Code are not unrelated statutes dealing with the separate universes of “legal” and “illegal” gambling.

The Gaming Act facially addresses far more than merely the lawful activities of “licensed entities” at “licensed facilities” and, indeed, contains many of its own proscriptions of various unlicensed activities. In addition, the Gaming Act works alongside Section 5513 of the Crimes Code to carve out activities that otherwise would be prohibited by the latter.

This also means that a “slot machine” as defined in the Gaming Act is the very same “slot machine” that is referenced in Section 5513(a)(1) of the Crimes Code. Most importantly for present purposes, after Act 42 of 2017, that includes a “skill slot machine” and a “hybrid

186 See generally 4 Pa.C.S. § 1518.

187 POM, 221 A.3d at 736.

188 See 4 Pa.C.S. § 1903(a)(2); 18 Pa.C.S. § 5513(e.1)(4).

189 18 Pa.C.S. § 5513(e.1)(4).

[J-96-2025, J-97-2025] - 51 slot machine,” the definitions of which render irrelevant any distinction between skill and chance in the operation of the device. That, in turn, removes the predominant factor test from our inquiry, for that test does not determine whether a device is a “slot machine.”

B. Appellees’ Arguments The Appellees’ arguments to the contrary are unavailing. In its best argument against the application of the Gaming Act, POM contends that its device does not constitute a “slot machine” due to limiting language in the Gaming Act’s definition of that term: “approved by the Pennsylvania Gaming Control Board.” In relevant part, a “slot machine” is defined as including “[a]ny mechanical, electrical or computerized contrivance, terminal, machine or other device approved by the Pennsylvania Gaming Control Board which, upon insertion of a coin, bill, ticket, token or similar object therein or upon payment of any consideration whatsoever,” allows a person to operate it and, whether by chance or skill, may entitle the person to a reward, and which may or may not exhibit certain other features.190 On POM’s reading of this definition, a device does not become a “slot machine” until it is “approved” by the Board. The Department contends that it is unreasonable to conclude that the “Board’s blessing” is what transforms a device into a “slot machine,” but POM argues that “the ‘Board’s blessing’ is precisely what is required to turn a game into a ‘slot machine.’”191 To the extent that POM suggests that the “approved by” the Board qualifier applies to all of the listed objects, i.e., “contrivance,” “terminal,” “machine,” and “device,” POM presents a plausible reading of the definition. There is, however, an arguably more natural reading: the “approved by” qualifier applies only to the immediately preceding noun, i.e., “other device.” On this reading, the definition would apply to a “mechanical,

190 4 Pa.C.S. § 1103 (defining “slot machine”) (emphasis added).

191 POM, POM’s Br. at 25 (quoting Department’s Br. at 30) (emphasis omitted).

[J-96-2025, J-97-2025] - 52 electrical, or computerized contrivance, terminal, machine,” or to an “other device approved by the Pennsylvania Gaming Control Board.” To compare the outcomes, on POM’s reading, its device meets every other element of the definition, but it is not a “slot machine” because it has not been “approved by” the Board. On the alternative reading, the POM device is a “computerized” “terminal” or “machine” that otherwise meets all the elements of the definition, and thus is a “slot machine” (or an included subset of slot machine, i.e., a “skill slot machine” or “hybrid slot machine,” depending on how one views the relative roles of skill and chance).

Because one can read the definition POM’s way, we will grant that the definition is at least arguably ambiguous in this regard.192 As such, we may employ all of our canons of statutory construction in discerning the legislative intent behind this definition. First, however, is a question of grammar.193 The dispute over the reach of the qualifying phrase—“approved by” the Board—presents a clash between the “series-qualifier” rule and the “last-antecedent” rule. Under the series-qualifier rule, where there is a series of nouns followed by a modifier, the “modifier at the end of the list ‘normally applies to the entire series.’”194 The dueling rule, the last-antecedent rule, provides that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.”195 These rules plainly are in tension. To borrow Professor 192 See A.S. v. Pennsylvania State Police, 143 A.3d 896, 905-06 (Pa. 2016) (“A statute is ambiguous when there are at least two reasonable interpretations of the text.”).

193 See 1 Pa.C.S. § 1903(a) (“Words and phrases shall be construed according to rules of grammar and according to their common and approved usage . . . .”).

194 Facebook, Inc. v. Duguid, 592 U.S. 395, 402 (2021) (quoting A. SCALIA & B.

GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 147 (2012) (“SCALIA & GARNER”)); see also Commonwealth v. Yard, 323 A.3d 762, 790 (Pa. 2024) (Donohue, J., dissenting) (discussing series-qualifier rule).

195 Facebook, 592 U.S. at 404 (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)); see also Yard, 323 A.3d at 774 (Wecht, J., concurring) (discussing last-antecedent rule).

[J-96-2025, J-97-2025] - 53 Llewellyn’s fencing analogy for canons of statutory construction, these linguistic rules provide something of a “thrust” and “parry” to each other.196 As always, then, it is wise not to be dogmatic in one’s approach to such rules. They are “useful tools, but it is important to keep their limitations in mind.”197 This is not to say, however, that these grammatical principles tell us nothing. It is noteworthy, for instance, that there is no punctuation between “other device” and “approved by” the Board; the qualifying phrase flows smoothly from “other device” with no intervening comma. As the United States Supreme Court has explained, “several leading treatises” provide that a “qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.”198 Because such is not the case here, we lean toward the “well-established cannon of construction that courts should generally apply qualifying words or phrases to the words immediately preceding them,” i.e., the last- antecedent rule.199 196 Karl N. Llwellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed, 3 VAND. L. REV. 395, 401-06 (1950) (describing each canon of statutory construction as a “thrust,” with an opposing canon serving as a “parry”).

197 Facebook, 592 U.S. at 410 (Alito, J., concurring); see id. at 411 (quoting SCALIA & GARNER at 150) (“Perhaps more than most of the other canons, [the series-qualifier canon] is highly sensitive to context. Often the sense of the matter prevails: ‘He went forth and wept bitterly’ does not suggest that he went forth bitterly.”) (bracketed material in original; quotation marks modified); see also Yard, 323 A.3d at 774 (Wecht, J., concurring) (applying the last-antecedent rule, but noting that the rule “is not an inexorable command”).

198 Facebook, 592 U.S. at 403-04 (citing W. ESKRIDGE, INTERPRETING LAW: A PRIMER ON HOW TO READ STATUTES AND THE CONSTITUTION 67-68 (2016); 2A N. SINGER & S.

SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 47:33, 499-500 (rev. 7th ed. 2014); SCALIA & GARNER 161-162).

199 Commonwealth v. Packer, 798 A.2d 192, 198 (Pa. 2002); see id. (quoting John Hancock Prop. & Cas. Ins. Co. v. Commonwealth Ins. Dep’t., 554 A.2d 618, 621-22 (Pa. (continued…) [J-96-2025, J-97-2025] - 54 More important than any technical grammatical guideline, however, is the fact that POM’s construction presents numerous other problems from a statutory construction standpoint. To conclude that a “slot machine” is not a “slot machine” until is approved by the Gaming Control Board produces a litany of incongruities and circularities that are not presented by the alternative, more natural reading of the definition. To revisit Section 1317.1(e)(1) of the Gaming Act—“No person may manufacture slot machines . . . for use within this Commonwealth unless the person has been issued the appropriate manufacturer license under this section”200—it becomes unclear, under POM’s reading, how one might violate this provision. As the Department observes, under POM’s reading, Section 1317.1(e)(1) would provide something like “no person may manufacture a Board- approved slot machine without the approval of the Board”—an interpretation that renders the provision a “redundant nullity.”201 Similar circularity pervades definitions like the “conduct of gaming,” which the Gaming Act defines as the “licensed placement, operation and play of slot machines . . . as authorized and approved by the Pennsylvania Gaming Control Board.”202 If “slot machines” must be “approved by” the Board in order to be “slot machines,” as POM insists, then the “approved by” the Board language in this definition is redundant.

Cmwlth. 1989)) (“Qualifying words ‘do not extend to or include other words, phrases, or clauses more remote, unless such extension or inclusion is clearly required by the intent or meaning of the context or disclosed by an examination of the entire act.’”).

200 4 Pa.C.S. § 1317.1(e)(1).

201 POM, Department’s Br. at 31.

202 4 Pa.C.S. § 1103 (defining “conduct of gaming”).

[J-96-2025, J-97-2025] - 55 Perhaps most significantly, POM’s interpretation of the definition of “slot machine” embraces an absurd result.203 On POM’s reading, a device that is one-hundred percent identical to a “slot machine” in every way is wholly exempt from the entire regulatory structure established by the Gaming Act merely because its manufacturer elects not to obtain the Gaming Control Board’s approval. Why, one might ask, would a person subject himself to the burdens of regulatory compliance and oversight when the alternative, purportedly, is simply to decline to comply with the law? This suggestion threatens to render the entire Gaming Act ineffective,204 at least as it concerns slot machines. One would have to “opt in” to the application of the Gaming Act by seeking out the Board’s approval, which would be a rather foolish economic choice if the “Wild West” of unlicensed and unregulated gambling is an available alternative. Moreover, this interpretation would require us to presume that the General Assembly intended to favor the private interest— POM’s interest, in particular—over the public interest.205 Under POM’s view, the legislature intended to approve a state of affairs in which something identical to gambling with slot machines pervades all corners of this Commonwealth, but without the heightened tax rate on slot machine revenue, without the funds raised through the hefty licensing fees, and without any of the regulatory controls or consumer protection requirements that attend the operation of slot machines in licensed facilities. 206 There is 203 See 1 Pa.C.S. § 1922(1) (directing courts to presume that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable”).

204 See id. § 1922(2) (directing courts to presume that “the General Assembly intends the entire statute to be effective and certain”).

205 See id. § 1922(5) (directing courts to presume that “the General Assembly intends to favor the public interest as against any private interest”).

206 See supra n.58 (concerning the heightened tax rate on slot machine revenue); n.51 (concerning the cost to obtain a slot machine license); Better Bets Ventures, 332 A.3d at 1213-14 (detailing the Gaming Control Board’s concerns that “skill games” lack regulatory controls that “require licensees to prevent minors from using gaming devices, (continued…) [J-96-2025, J-97-2025] - 56 no indication that this is the case. Indeed, all evidence points to the contrary, particularly given the General Assembly’s specific choice in Act 42 of 2017 to include a “skill slot machine” and “hybrid slot machine” within the definition of a “slot machine,” i.e., to place devices such as POM’s within the regulatory framework of the Gaming Act.

For all of these reasons, we do not agree with POM that the Gaming Control Board’s approval is the sine qua non of a “slot machine” under the Gaming Act. Rather, the better reading is the more straightforward one: the qualifying phrase applies to its last antecedent, i.e., “or other device approved by the Pennsylvania Gaming Control Board.”

The POM device qualifies as a slot machine because it is a “computerized . . . machine” that meets all of the other elements that define a “slot machine.” At best, depending upon how one assesses the relative role of skill or chance as “the predominant factor in affecting the outcome of the game,” then the device may be deemed a “skill slot machine” or “hybrid slot machine” after Act 42 of 2017, both of which, in turn, are defined as a “slot machine.”207 POM’s lead argument on this score fails.

The Appellees in Three Devices advance a similar linguistic argument concerning the scope of Section 5513(a)(1) of the Crimes Code, but it fares no better. Where Section 5513(a)(1) applies to “any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards,”208 the Appellees contend that the phrase “to be used for gambling purposes” applies to each item in the list, such that the Commonwealth would need to prove that a seized device is a “slot machine . . . to be impose minimum pay-out percentages, require approval of site plans to ensure the adequacy of security and surveillance measures, create requirements for advertising of the games, and require the posting of signs containing a toll-free telephone number for help with compulsive and problem gambling.”).

207 4 Pa.C.S. § 1103 (defining “slot machine,” “skill slot machine,” and “hybrid slot machine”).

208 18 Pa.C.S. § 5513(a)(1).

[J-96-2025, J-97-2025] - 57 used for gambling purposes.”209 Because the Appellees insist that the POM device is not used for “gambling” due to their view of the predominant factor test,210 they contend that Section 5513(a)(1) does not apply to the POM device. This argument requires less analysis. The Appellees’ proposed construction requires a particularly unintuitive reading of the text. Again, as discussed above concerning the use of the last-antecedent rule versus the series-qualifier rule, there is no comma between “device” and “to be used for gambling purposes,” as would suggest the application of the qualifying phrase to all of the preceding nouns. Absent the qualifying phrase, moreover, the provision addresses a “punch board,” “drawing card,” “slot machine,” and a “device.” Yet, all of the preceding objects are devices, making it unclear why they would be listed separately. It is only when the qualifying phrase “to be used for gambling purposes” is attached to “any device” that the latter obtains a meaning that makes sense alongside the preceding list of gambling devices. The Appellees’ reading also fails to account for the carveout for “playing cards.”

A “slot machine . . . to be used for gambling purposes, except playing cards” is inscrutable; “any device to be used for gambling purposes, except playing cards” makes perfect sense. As a whole, the only reasonable reading of this provision is that “any device to be used for gambling purposes” is a catch-all term expanding upon the preceding list of enumerated items, as we commonly see throughout many statutes.211

209 See Three Devices, Appellees’ Br. at 62-65.

210 See id. at 36-40; accord POM, POM’s Br. at 30 (asserting that “the POM Game does not involve gambling”) (bold emphasis in original).

211 See 1 Pa.C.S. § 1903(b) (“General words shall be construed to take their meanings and be restricted by preceding particular words.”); see also ejusdem generis, BLACK’S LAW DICTIONARY (12th ed. 2024) (“A canon of construction holding that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.”).

[J-96-2025, J-97-2025] - 58 It is here that Justice Donohue departs from our analysis. Justice Donohue stresses that the forfeiture provision, Section 5513(b), applies to any “gambling device possessed or used in violation of the provisions of subsection (a),”212 which, in her view, means that a device that constitutes a “slot machine” for purposes of Section 5513(a)(1) is subject to forfeiture only if it is separately determined to be “used for gambling purposes,” which requires the application of the predominant factor test.213 Although we do not take issue with Justice Donohue’s application of the predominant factor test, we nonetheless do not agree with Justice Donohue’s statutory analysis for several reasons.

First, the more straightforward reading of Section 5513(b) is simply that the forfeiture provision applies to devices that violate Section 5513(a)—that are “possessed or used in violation of” Section 5513(a). That is, the items listed in Section 5513(a)(1) are the “gambling devices” that are referenced in Section 5513(b). More importantly, as it concerns “slot machines” specifically, there is no need for an additional analysis under the predominant factor test because, as we have explained, the predominant factor test was incorporated into (and effectively made irrelevant by) the Gaming Act’s definition of a “slot machine,” via Act 42’s additions of a “skill slot machine” and “hybrid slot machine” into that definition.214 Moreover, the “slot machine” definition already encompasses the 212 18 Pa.C.S. § 5513(b) (emphasis added).

213 Id. § 5513(a).

214 See supra n.55 and accompanying text. Justice Donohue suggests that, if the General Assembly intended to eliminate the predominant factor test, “it would have done so expressly by amending the Crimes Code to eliminate the consideration of chance from the definition of a ‘gambling device’ established in this Court’s precedent. Conc. Op. (Donohue, J.) at 22. Justice Donohue’s suggestion is not the only way to achieve such ends. The General Assembly did expressly “eliminate the consideration of chance” from the definition of a “slot machine.” It included a “skill slot machine” and a “hybrid slot machine” into the definition in the Gaming Act, which render irrelevant any consideration of the distinction between skill and chance. See 4 Pa.C.S. § 1103 (defining a “skill slot machine” as a “slot machine in which the skill of the player, rather than the element of (continued…) [J-96-2025, J-97-2025] - 59 other elements of gambling, i.e., consideration and reward.215 Thus, a “slot machine” for purposes of Section 5513(a)—which is the same “slot machine” defined in the Gaming Act—is indeed “used for gambling purposes.” Such devices are regulated by the Gaming Act precisely because they are used for gambling purposes.

Notably, Justice Donohue agrees that the term “slot machine” in Section 5513(a) must be understood by reference to the definition of a “slot machine” in the Gaming Act.

Justice Donohue’s position nonetheless depends upon the idea that there is some subset of “slot machines” that are not used for gambling, and that the predominant factor test is therefore necessary to distinguish between those used for gambling and “those that are innocuous.”216 Setting aside that the “slot machines” defined in the Gaming Act are used for gambling, Justice Donohue’s position is largely premised upon a dictionary definition from 1927 that does not reference gambling.217 If we are to disregard the definition in the Gaming Act and look to common meaning, we might just as well use the Commonwealth Court’s dictionary definition in Three Devices, i.e., “a coin-operated gambling machine chance, is the predominant factor in affecting the outcome of the game,” and a “hybrid slot machine” as a “slot machine in which a combination of the skill of the player and elements of chance affect the outcome of the game”) (emphasis added).

215 See supra n.54 and accompanying text. The “slot machine” definition in the Gaming Act incorporates the elements of “consideration,” i.e., the “insertion of a coin, bill, ticket, token or similar object therein or upon payment of any consideration whatsoever,” and “reward,” i.e., that the machine may entitle the player to “receive cash, billets, tickets, tokens or electronic credits to be exchanged for cash or to receive merchandise or anything of value whatsoever.” 4 Pa.C.S. § 1103 (defining “slot machine”).

216 Conc. Op. (Donohue, J.) at 20.

217 See id. at 8 (quoting WEBSTER’S COLLEGIATE DICTIONARY (3d. ed. 1927)) (asserting that a “slot machine” in 1925 was understood as “a machine the operation of which is started by dropping a coin into a slot”).

[J-96-2025, J-97-2025] - 60 that pays off according to the matching of symbols on wheels spun by a handle.”218 That definition is far closer to what one commonly understands a “slot machine” to be.

It remains that the most straightforward construction of Section 5513 is that the specific devices listed in Section 5513(a)(1)—“punch board,” “drawing card,” and “slot machine”—are “gambling devices,” and the phrase “any device to be used for gambling purposes” is a catch-all provision meant to expand upon the list of enumerated devices.

To the extent that Justice Donohue is concerned with other uses of items such as punch boards and drawing cards, it very well might be the case that such uses are encompassed within the Local Option Small Games of Chance Act, which Section 5513(e.1) exempts from the prohibitions of the Crimes Code.219 Such matters, however, are well beyond the scope of the instant appeals. With regard to other devices that lack a specific statutory definition, the predominant factor test may well be necessary to assess their nature. But as it concerns a “slot machine,” the General Assembly has dispensed with that inquiry through the definition that it provided in the Gaming Act.

Finally, the Appellees in both POM and Three Devices argue that, if the POM device is found to be a “slot machine” under the definition in the Gaming Act, and thus for purposes of Section 5513, then “all ordinary ticket-generating games at amusement businesses like Dave & Busters, Chuck E. Cheese, or the local community fair would be illegal.”220 This is a “slippery slope” argument that the Commonwealth calls the “Chuck E. Cheese defense.”221 It is worth noting that this Court in Commonwealth v. Irwin found

218 Three Devices, 306 A.3d at 440 (emphasis added).

219 See 18 Pa.C.S. § 5513(e.1)(3); see also 10 P.S. § 328.103 (including “[p]unchboards, daily drawings, weekly drawings, 50/50 drawings” within the definition of approved “games of chance” under the Local Option Small Games of Chance Act).

220 POM, POM’s Br. at 39 (spelling of “Chuck E. Cheese” corrected).

221 POM, Department’s Reply Br. at 19.

[J-96-2025, J-97-2025] - 61 that similar devices at a pizza shop that awarded tokens to be exchanged for children’s prizes did not constitute gambling devices per se, given that the prizes were always worth less than the cost of play and thus the “reward” element of gambling was absent.222 Nonetheless, the Appellees’ point is that, under the definition of a “slot machine” in the Gaming Act, the reward component includes “merchandise or anything of value whatsoever,”223 and thus, as a theoretical matter, this sort of amusement device may qualify. The point is well-taken. It also bears emphasis that the POM device does not merely award tokens to be exchanged for toys or trinkets. Despite its euphemistic name, the “Pennsylvania Skill Amusement Device” plainly is not purely for entertainment. It is not a game for children to win prizes. Its raison d’être is to take the money of those who risk it in the hope of winning more money. POM may not wish to call that “gambling,” but one cannot help but notice that its device is rather unlike those at Chuck E. Cheese.

In any event, should the Appellees’ warning actually come to fruition as a consequence of the General Assembly’s words, then so be it. We cannot shy away from the language of a statute merely because its application may have undesirable consequences in some hypothetical future context. Should law enforcement officers begin conducting raids of children’s amusement establishments and seizing Skee-Ball machines and stuffed animals, our courts are equipped to consider legal challenges to such actions at that juncture. And of course, if the General Assembly determines that the threat of this possibility is of sufficient magnitude, it remains free to amend the relevant statutes to provide further for such innocuous activity, as other jurisdictions have done.224 222 Commonwealth v. Irwin, 636 A.2d 1106, 1107-08 (Pa. 1993).

223 4 Pa.C.S. § 1103 (defining “slot machine”).

224 See POM, Department’s Reply Br. at 21-22 (citing Ex Parte Ted’s Game Enterprises, 893 So.2d 376, 381 (Ala. 2004) (discussing Alabama’s “Chuck E. Cheese Law,” Ala. Code 1975, § 13A-12-76, which exempts from gambling statutes certain (continued…) [J-96-2025, J-97-2025] - 62 In other respects, the Appellees’ arguments either are directed to the predominant factor test, which is immaterial to a “slot machine,” or they echo the reasoning of the Commonwealth Court, which we already have found to lack merit.

V. Conclusion and Mandate The legal analysis in these appeals distills to a few straightforward points. A “slot machine” in Section 5513(a)(1) of the Crimes Code is not some wholly distinct object unrelated to the “slot machine” that is defined in the Gaming Act. Rather, Section 5513 tells us to look to the Gaming Act to determine what activities are “lawfully conducted” thereunder, such that they are, ipso facto, not unlawful under the Crimes Code either.225 The Gaming Act, in turn, addresses many different activities relating to “slot machines,” and it specifically provides for those that are lawful and those that are unlawful, i.e., both legal and illegal gambling. One statute is not in tension with the other, and neither is “inconsistent with”226 the other. They do not relate to a different class of things. The statutes work together. The Gaming Act provides for the “limited gaming”227 that otherwise would be prohibited by Section 5513, and activities involving a “slot machine” that are not lawfully operated under the Gaming Act remain subject to Section 5513 of the Crimes Code. This is a perfectly intelligible, straightforward statutory scheme. devices that award “noncash merchandise, prizes, toys, gift certificates, or novelties”); City of Forth Worth v. Rylie, 649 S.W.3d 246, 252 (Tex. 2022) (discussing the “fuzzy animal exception” to Texas gambling law, Texas Penal Code § 47.01(4)(B))). Notably, the General Assembly already has exempted the State Lottery, bingo games, and certain small games of chance from the prohibitions of Section 5513 of the Crimes Code, see 18 Pa.C.S. § 5513(e.1)(1)-(3), and there is nothing that would prevent the legislature, should it see fit, from providing similarly for the sort of games that one may find at Chuck E.

Cheese.

225 18 Pa.C.S. § 5513(e.1)(4).

226 4 Pa.C.S. § 1903(a)(2).

227 See generally 4 Pa.C.S. § 1102 (articulating the General Assembly’s intent in the Gaming Act).

[J-96-2025, J-97-2025] - 63 Is the POM device a slot machine? Several times over. First, the device meets the general definition of a “slot machine” in the Gaming Act, and it always has.228 Second, especially after Act 42 of 2017 added two new terms to the definition of “slot machine” that specifically address the “skill” aspect of the device, the POM device—which for its entire legal existence depends upon its minor “skill” component—is also plainly either a “skill slot machine” or a “hybrid slot machine.”229 Take your pick. These conclusions are necessitated by the unambiguous language of the Gaming Act, and not any judicial interpretation of otherwise undefined terms. But even setting aside the plain language of the statutes and resorting instead to a judicial gloss, the POM device is a “slot machine” for a yet a third reason—it meets the Commonwealth Court’s common-meaning, ordinary- English definition: “a coin-operated gambling machine that pays off according to the matching of symbols on wheels spun by a handle,” or an electronic version of such a device.230 This definition describes the POM device with precision.

Nonetheless, one might, as the Commonwealth Court did, insist that the device is not a “slot machine” because there is some “skill” component of the gameplay (or at least there can be, hypothetically). But this is merely to invoke the predominant factor test.

The new definitions of “skill slot machine” and “hybrid slot machine” plainly eliminate the predominant factor test for any device that otherwise constitutes a “slot machine.” No amount of skill, chance, or any combination thereof will remove a device from the ambit 228 See POM, 221 A.3d at 725 (holding that POM’s “skill game” device meets the definition of “slot machine” and “skill slot machine” in the Gaming Act, and that POM meets the definition of a “manufacturer” and a “supplier” of slot machines).

229 See 4 Pa.C.S. § 1103 (defining “skill slot machine” as a “slot machine in which the skill of the player, rather than the element of chance, is the predominant factor in affecting the outcome of the game,” and a “hybrid slot machine” as a “slot machine in which a combination of the skill of the player and elements of chance affect the outcome of the game”).

230 Three Devices, 306 A.3d at 440.

[J-96-2025, J-97-2025] - 64 of a “slot machine” after Act 42 of 2017. Thus, although the parties expend much of their advocacy on the supposed subtleties of the predominant factor test, we need not apply it to the POM device. That inquiry would make sense if we needed to determine whether the device constitutes a gambling device in the abstract, such that it falls into Section 5513(a)(1)’s general clause—“device to be used for gambling purposes.”231 We need not conduct that inquiry. The device is a “slot machine.”

These straightforward conclusions are sufficient to establish the reversible errors of the Commonwealth Court in both POM and Three Devices.232 The orders of the Commonwealth Court are reversed, and the matters are remanded for further proceedings consistent with this opinion.

This order is stayed for 120 days.

Chief Justice Todd and Justice McCaffery join the opinion. Justices Mundy and Brobson join the opinion with respect to the appeal at 50 MAP 2024.

Justice Donohue files a concurring opinion, concurring in the result.

231 18 Pa.C.S. § 5513(a)(1).

232 We respectfully differ with Justice Brobson’s suggestion to affirm the Commonwealth Court’s order in POM on narrower grounds. Justice Brobson observes that one component of the Department of Revenue’s counterclaim sought to preclude POM from engaging in further sales and distribution of its devices unless it could obtain the appropriate licenses, but “manufacturer” and “supplier” licenses under the Gaming Act are not available to entities that “seek to facilitate illegal gaming in the Commonwealth by placing their machines in unlicensed facilities.” Conc. and Diss. Op. (Brobson, J.) at 5. Thus, Justice Brobson would conclude that the Department was not entitled to its requested relief “to the extent that request was premised on the theory” that POM was required to obtain a slot machine manufacturer and/or supplier license. Id. As we understand the Department’s position, the Department never suggested that POM could obtain the required licenses under the Gaming Act. Rather, the Department highlighted the unlicensed nature of POM’s conduct in order to emphasize POM’s failure to comply with the Gaming Act. Justice Brobson stresses that POM is not eligible for manufacturer or supplier licenses in the first place, but this simply further illustrates that POM’s activities are unlawful under the Gaming Act, which was exactly what the Department’s counterclaim sought to establish.

[J-96-2025, J-97-2025] - 65 Justice Brobson files a concurring and dissenting opinion in which Justice Mundy joins.

Justice Dougherty did not participate in the argument or decision of these matters.

[J-96-2025, J-97-2025] - 66

[J-96-2025, J-97-2025] [MO: Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

IN RE: THREE PENNSYLVANIA SKILL : No. 50 MAP 2024 AMUSEMENT DEVICES, ONE GREEN BANK : BAG CONTAINING $525.00 IN U.S. : Appeal from the Order of the CURRENCY, AND SEVEN RECEIPTS : Commonwealth Court at No. 707 : CD 2023 entered on November : 30, 2023, Affirming the Lower APPEAL OF: COMMONWEALTH OF : Court Order of the Dauphin PENNSYLVANIA : County Court of Common Pleas at : No. 2022-CV-06333-MD entered : on March 23, 2023 : : ARGUED: November 20, 2025 POM OF PENNSYLVANIA, LLC : No. 2 EAP 2024 : : Appeal from the Order of the v. : Commonwealth Court entered on : January 16, 2024, at No. 418 MD : 2018 COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF REVENUE, AND CITY OF : ARGUED: November 20, 2025 PHILADELPHIA, : : : APPEAL OF: COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : REVENUE :

CONCURRING OPINION JUSTICE DONOHUE DECIDED: June 15, 2026 The Majority does not address the two cases before us as independent of one another, despite each case involving separate statutes and distinct procedural histories.

For purposes of this opinion, I distinguish between the two appeals. I join the Majority in part and write separately to delineate my reasoning as follows.

POM of Pennsylvania, LLC v. Commonwealth of Pennsylvania, Department of Revenue, et al. (“Declaratory Judgment Appeal”) As a result of multiple seizures of Pennsylvania Skill Amusement devices (“POM devices”) by the Philadelphia Police Department’s Vice Unit from 2017 through 2018, POM of Pennsylvania, LLC (“POM”) filed a petition for review in the Commonwealth Court seeking a declaratory judgment that its POM device is lawful under Section 5513 of the Crimes Code1 and joined the City of Philadelphia and the Department of Revenue (“DOR”). DOR responded and asserted a counterclaim, alleging that the POM device is a slot machine under the Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. §§ 1101-1904 (“Gaming Act”) and that POM is in violation of the Gaming Act for failing to obtain a license. DOR eventually filed an application for summary relief requesting a declaration of the same. The Commonwealth Court agreed that the POM device is a slot machine under the Gaming Act but determined that the Gaming Act only “regulates licensed slot machines in licensed facilities.” POM of Pa., LLC v. Dep’t of Revenue, 221 A.3d 717, 731 (Pa. Commw. 2019) (emphasis in original). Consequently, the Commonwealth Court held that unlicensed slot machines are not subject to the Gaming Act. Id. Our review of the Declaratory Judgment Appeal is thus limited to the provisions of the Gaming Act.

I join the Majority’s holding that the Gaming Act applies to POM and its POM devices. Specifically, I agree that the Gaming Act could not be more clear that it covers “the manufacture and supply of slot machines ‘in this Commonwealth,’ not only with respect to those slot machines destined for ‘licensed facilities’ or to be used by ‘licensed

1 18 Pa.C.S. § 5513.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 2 entities.’” Majority Op. at 43 (quoting 4 Pa.C.S. § 1103). I further agree with the Majority’s interpretation of Subsections 1317.1(e)(1) and 1518(a)(4), such that the use of the term “person” indicates the General Assembly’s intent that those provisions are not limited to “licensed entities.” Id. at 44-47 (citing 4 Pa.C.S. §§ 1317.1(e)(1), 1518(a)(4)). Finally, for the reasons explained by the Majority, “the Gaming Control Board’s approval is [not] the sine qua non of a ‘slot machine’ under the Gaming Act.” Id. at 55-57. Thus, I agree that “[t]he POM device qualifies as a slot machine because it is a ‘computerized … machine’ that meets all of the other elements that define a ‘slot machine.’” Id. at 57 (quoting 4 Pa.C.S. § 1103). I concur in the result of the Majority in the Declaratory Judgment Appeal reversing the judgment of the Commonwealth Court.

In re Three Pennsylvania Skill Amusement Devices (“Forfeiture Appeal”) In the Forfeiture Appeal, Champions Sports Bar, LLC (“Champions”) obtained three POM devices through a business arrangement with Capital Vending, LLC (“Capital Vending”), which is the lawful owner of the POM devices. The Pennsylvania State Police’s Bureau of Liquor Control Enforcement (“BLCE”) conducted a warrantless search and seizure of the POM devices from Champions pursuant to its authority under 42 Pa.C.S. §§ 5803(a)(7), (b)(4), (b)(6)2 and 18 Pa.C.S. § 5513(b), and without filing criminal

2 Section 5803 provides, in pertinent part, (a) Applicability.–Notwithstanding any law to the contrary, this section shall apply to forfeitures conducted under the following: * * * (7) 18 Pa.C.S. § 5513 (relating to gambling devices, gambling, etc.). (continued…) [J-96-2025, J-97-2025] [MO: Wecht, J.] - 3 charges under 18 Pa.C.S. § 5513(a). OAG’s Answer and New Matter, In re Three Pa. Skill Amusement Devices, No. 2022 CV 6333-MD, 9/8/2022, ¶¶ 4, 12. Subsection 5513(b) provides that “[a]ny gambling device possessed or used in violation of the provisions of subsection (a) shall be seized and forfeited to the Commonwealth.” 18 Pa.C.S. § 5513(b). Champions and Capital Vending (collectively, “Appellees”) filed a petition for return of property on the ground that the seizure did not satisfy Subsection 5513(b) because the POM devices are not gambling devices. Petition for Return of Property, In re Three Pa. Skill Amusement Devices, No. 2022 CV 6333-MD, 8/23/2022, ¶ 12. The Office of Attorney General (“OAG”) filed an answer and new matter asserting that the POM devices are gambling devices used in violation of Subsection 5513(a) and therefore, the seizure was justified under Subsection 5513(b). OAG’s Answer and New Matter, ¶ 61. The trial court ruled in favor of Appellees, finding that the POM devices were not gambling devices and Appellees were entitled to the return of the devices. OAG

(b) Process and seizure of money and personal property.—Property subject to forfeiture may be seized by a law enforcement authority if any of the following apply: * * * (4) There is probable cause to believe that the property has been used or is intended to be used in violation of the act of April 14, 1972 (P.L. 233, No. 64),[ ] known as The Controlled Substance, Drug, Device and Cosmetic Act, or another offense for which forfeiture is expressly authorized as a sanction. * * * (6) There is probable cause to believe that the property is subject to forfeiture and exigencies are likely to result in the destruction or removal of the property.

42 Pa.C.S. § 5803(a)(7), (b)(4), (b)(6).

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 4 appealed to the Commonwealth Court, which affirmed the ruling of the trial court. OAG appealed to this Court, raising the following issues: 1. Does an electronic slot machine cease to be an illegal “gambling device,” governed predominantly by chance, if the machine’s manufacturers embed into its programming a so- called “skill” element that is almost entirely hidden from view and is almost impossible to complete?

2. Should gambling statutes governing “slot machines” be read in pari materia to supply an appropriate definition of the term?

In re Three Pa. Skill Amusement Devices, 320 A.3d 673 (Pa. 2024) (per curiam).

I agree with the Majority’s holding that the Commonwealth Court’s decision that the POM device is not a prohibited device under Section 5513 of the Crimes Code must be reversed, but I would reverse on different grounds. The Majority holds that to establish a violation under Subsection 5513(a)(1), the Commonwealth need only prove that the POM device is a slot machine as defined in the Gaming Act. Majority Op. at 61. In my view, this misses the issue before this Court. In this appeal, we are addressing a forfeiture action under Subsection 5513(b) which requires us to determine whether the POM devices are “gambling devices” that may be subject to forfeiture under 18 Pa.C.S. § 5513(b). The Forfeiture Appeal is properly resolved pursuant to the plain text of Subsection 5513(b) and our decision in Commonwealth v. Two Electronic Poker Game Machines, 465 A.2d 973 (Pa. 1983) (“Two Poker Machines”). The Majority’s importation of the definition of “slot machine” from the Gaming Act to the meaning of “slot machine” under Subsection 5513(a), and its conclusion that slot machines need not be “used for gambling purposes,” fails to answer the key question for the forfeiture provision in Subsection 5513(b): is the seized slot machine a “gambling device?” I conclude that it is.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 5 Statutory Construction To address the lawfulness of the forfeiture, we must interpret Section 5513 which, according to the BLCE, provided the authority for its confiscation of the POM devices in this case. The relevant provisions of Section 5513 provide as follows: (a) Offense defined.--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 place under his control; (3) solicits or invites any person to visit any unlawful gambling place for the purpose of gambling; or (4) being the owner, tenant, lessee or occupant of any premises, knowingly permits or suffers the same, or any part thereof, to be used for the purpose of unlawful gambling.

(b) Confiscation of gambling devices.--Any gambling device possessed or used in violation of the provisions of subsection (a) shall be seized and forfeited to the Commonwealth. The forfeiture shall be conducted in accordance with 42 Pa.C.S. §§ 5803 (relating to asset forfeiture), 5805 (relating to forfeiture procedure), 5806 (relating to motion for return of property), 5807 (relating to restrictions on use), 5807.1 (relating to prohibition on adoptive seizures) and 5808 (relating to exceptions).

* * * (e.1) Construction.--Nothing in this section shall be construed to prohibit any activity that is lawfully conducted under any of the following: * * *

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 6 (4) 4 Pa.C.S. (relating to amusements).

18 Pa.C.S. §§ 5513(a)(1)-(4), (b), (e.1)(4). Relevant to the underlying forfeiture action, a “gambling device possessed or used in violation of subsection (a)” shall be seized unless it is otherwise lawful under the Gaming Act. 18 Pa.C.S. §§ 5513(b), (e.1)(4). Applying our well-worn tools of statutory construction,3 we first consider the plain language of the forfeiture provision. Beginning with the text of the statute, Subsection 5513(b) permits the seizure and forfeiture of “any gambling device possessed or used in violation of the provisions of subsection (a)[.]” 18 Pa.C.S. § 5513(b) (emphasis added). According to its terms, there are two types of gambling devices that may be seized: (1) a device that is possessed in violation of Subsection (a); or (2) a device that is used in violation of Subsection (a). In either case, the Commonwealth’s authorization to seize applies to gambling devices only.

Turning to Subsection 5513(a)(1), the statute prohibits intentionally or knowingly manufacturing or supplying certain devices, specifically “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)(1). Beginning with the plain meaning of the words “punchboard, drawing card, [and] slot machine,” we look to the dictionary definitions of those words at

3 Our object “is to ascertain and effectuate the intention of the General Assembly[,]” and we do so by construing the statute “to give effect to all its provisions.” 1 Pa.C.S. § 1921(a).

Absent ambiguity, statutes are given their plain meaning. Id. § 1921(b). “We ascertain the plain meaning of a statute by ascribing to its particular words and phrases the meaning which they have acquired through their common and approved usage, and in context.” O’Neill v. State Emps. Ret. Sys., 280 A.3d 873, 881 (citing 1 Pa.C.S. § 1903).

In this exercise, “we strive to determine its meaning at the time the General Assembly enacted the legislation.” Id. at 885 n.8. Further, as a matter of statutory interpretation, “although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say.” Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020).

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 7 the time the General Assembly enacted the legislation. See O’Neill, 280 A.3d at 885 (“To discern the legislative meaning of words and phrases, our Court has on numerous occasions engaged in an examination of dictionary definitions.”); 1 Pa.C.S. § 1961 (“Whenever a statute reenacts a former statute, the provisions common to both statutes shall date from their first adoption.”). Importantly, the language of this provision first appeared in the Act of April 29, 1925, P.L. 357, No. 208, which made it a misdemeanor to “make, manufacture, or assemble any punchboard, drawing card, slot machine, or any machine or device used or intended to be used for gambling.” This language was largely reenacted in 1972, when the General Assembly codified criminal laws within this Commonwealth and has since remained unchanged. See Act of Dec. 6, 1972, P.L. 1482, No. 334.

Around the year 1925, the dictionary definition of the term “slot machine” was “a machine the operation of which is started by dropping a coin into a slot.” Slot machine, WEBSTER’S COLLEGIATE DICTIONARY (3d. ed. 1927). The definitions of “slot machine” in 1927 and 1972 were materially the same. See Slot Machine, WEBSTER’S SEVENTH NEW COLLEGIATE DICTIONARY (1972) (“a machine whose operation is begun by dropping a coin into a slot”); see also Slot, THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH (5th ed. 1972) (“Groove, channel, slit, or long aperture, made in machine etc. to admit some other part, esp. slit for penny or other coin that sets working a machine or automatic retailer of small wares[.]”); see also Slot Machine, COLLINS ENGLISH DICTIONARY (1972) (“an automatic machine worked by the insertion of a coin.”); see also Slot Machine, CHAMBERS TWENTIETH CENTURY DICTIONARY (1972) (“one operated by inserting a coin in a slot[.]”).

While “punchboard” and “drawing card” do not appear in early dictionaries, both are

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 8 associated with lotteries—a punchboard being a box with numerous holes covered with paper or foil which contained prizes varying from cheap merchandise to cash and a drawing card is a card with a number written on it which corresponds to an individual.

See JOHN SCARNE, SCARNE’S COMPLETE GUIDE TO GAMBLING 625-626 (1961) (discussing the history of punchboards); Affiliated Enters. v. Gantz, 86 F.2d 597, 598 (10th Cir. 1936) (describing a system “for giving away money prizes by lot or chance in theatres or other places of entertainment open to the public on payment of an admission fee[,]” which entailed the use of “drawing cards” which “are made out corresponding with the registration numbers and put into a receptacle from which the drawing will be made”).

The definition of “slot machine” and the common understanding of punchboard and drawing card demonstrates that they have both innocuous uses and gambling uses.

However, such devices are only prohibited when they are used for gambling purposes. 4 Like the Commonwealth Court in this case, the decisions of several other lower courts solidify this principle. Those courts have analyzed whether slot machines contain the three essential elements of gambling when deciding whether they qualify as gambling devices. See Commonwealth v. 9 Mills Mechanical Slot Machines, 437 A.2d 67, 70 (Pa. Commw. 1981) (“The undisputed evidence in this case reveals that Angelo did maintain and lease the nine slot machines and the two other devices, which were used for

4 Notably, I discern no error in the Majority’s conclusion that the Gaming Act and Section 5513 create a unified statutory scheme (i.e., that the statutes are in pari materia), and that the definition of “slot machine” in the Gaming Act must be the definition of “slot machine” in Subsection 5513(a)(1). See Majority Op. at 39-41. However, any definition of “slot machine” does not change the analysis that must be conducted under Subsection 5513(a)(1). Whatever technical specifications are assigned to the term, it must still be used for gambling purposes (or in other words a gambling device) to fall under the prohibition in Subsection 5513(a)(1).

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 9 gambling purposes, to the Club. Therefore, the slot machines and the two other devices were ‘gambling devices possessed or used in violation of subsection (a).’”) (emphasis added); Commonwealth v. Wintel, Inc., 829 A.2d 753, 757-58 (Pa. Commw. 2003) (applying the three-part test and finding that the video slot machines were gambling devices per se). This demonstrates that courts have not regarded the mere presence of a slot machine as dispositive; rather, they have evaluated whether the machine satisfies the elements of gambling.

Case law from other jurisdictions is likewise consistent with this interpretation. For example, in Fey v. Rossi Improvement Co., a California district court explained “[i]t is a matter of common knowledge that coin-operated slot machines are manufactured and generally used by small tradesmen, places of amusement, and public service corporations, upon the result of the action of which money or other thing of value is not hazarded, … which vend small articles of merchandise such a[s] candy, cigars, stamps, etc., and those which control gas and telephone service.”5 Fey v. Rossi Improvement Co., 139 P. 908 (Cal. Dist. Ct. App. 1914); see Automatic Slot-Machines, 25 Pa. D. 671 (Atty Gen. Apr. 17, 1916) (describing similar devices); Kirk v. Morrison, 146 So. 215, 217

5 Another example of early slot machines is the slot machine at issue in Mills Novelty Co., which was operated by inserting a coin into a slot and pulling a lever which would spin reels in the machine and dispense a package of mints. Occasionally, the machine would also dispense tokens which could be used in place of a nickel to tell a player their “fortune.” However, this machine could be altered by the operator by bending a prong inside the machine which allowed the tokens to dispense nickels in varying amounts based on the result of the reels. This Court found that the existence of this mechanism “was sufficient to satisfy a court that the machines were, within the meaning of the act of 1925, [ ] manufactured by appellant with the intent that they should be used for gambling.”

In re Mills Novelty Co., 175 A. 548, 553 (Pa. 1934); cf. Commonwealth v. Bair, 20 Pa. D. & C. 23, 27-28 (Dauphin Cty. 1933) (finding that an otherwise identical slot machine was not a gambling device because there was no evidence of the existence of the prong mechanism or that it was actually being used for gambling).

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 10 (Fla. 1933) (“In some states every ‘slot machine’ is by statute to be deemed a gambling device. But in states such as ours, where no such statutory definitions exist, the use to which a ‘slot machine’ is put, or designed to be put, must determine its character as a device for gaming or gambling. The courts are not permitted to take judicial notice that every slot machine, as such, is a gambling device.”). A punchboard could have slips containing the name of a checkers setup and if the player could identify the proper solution he would receive a box of candy. Johnson v. McDonald, 287 P. 220 (Or. 1930). A drawing card could be used for purposes other than a lottery, such as determining who among a family would be assigned certain household chores.

The General Assembly’s intent when it drafted the statute was to prohibit “punchboard[s], drawing card[s], slot machine[s] or any device[s] to be used for gambling purposes.” 18 Pa.C.S. § 5513(a)(1). Unlike the Majority, I read “to be used for gambling purposes” as qualifying “punchboard, drawing card, slot machine” and “any device.”

While the plain language is clear on its own, the title of the statute reads “Gambling devices, gambling, etc.”, 18 Pa.C.S. § 5513, and when passed in the Act of April 29, 1925, P.L. 357, the title was “Manufacture of gambling devices.” See 1 Pa.C.S. § 1924 (permitting the title of a statute to be considered in statutory construction). Because a slot machine is not a gambling device unless it is “used for gambling purposes,” as explained above, the qualifier must modify “slot machine.” Under my reading, this provision uses “a straightforward, parallel construction that involves all nouns or verbs in a series” which is followed by a modifier that “applies to the entire series.” Facebook, Inc. v. Duguid, 592 U.S. 395, 402 (2021) (explaining the series qualifier cannon). This interpretation “reflects the most natural reading of [the] sentence.” Id. at 403. Indeed,

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 11 nothing in Section 5513 could support the conclusion that it is a misdemeanor to intentionally make a slot machine featuring a Jeopardy™-style game won solely by the use of the player’s knowledge.6 This interpretation is consistent with the remaining provisions in Subsection 5513(a), which also prohibit activities relating to gambling. The remaining provisions in Subsection 5513(a) prohibit “allow[ing] persons to collect or assemble[,]” “solicit[ing] or invit[ing] any persons to visit[,]” or “being the owner, tenant, lessee or occupant of any premises, knowingly permit[ting] or suffer[ing] the same, or any part thereof, to be used” for the purpose of unlawful gambling. See 18 Pa.C.S. §§ 5513(a)(2)-(4).

While mere possession of a device described in Subsection 5513(a) cannot justify a conviction under that Subsection (and is thus not a “violation of the provisions of subsection (a),” 18 Pa.C.S. § 5513(b)), see Commonwealth v. Dumont, 536 A.2d 342, 349 (Pa. Super. 1987); Commonwealth v. Bretz, 433 A.2d 55, 58 (Pa. Super. 1981), the Commonwealth may seize devices that can be used for no purpose other than gambling, i.e., a gambling device per se, because “[w]hen the nature of the device is shown to be such as fits them solely for an unlawful purpose,” the owner has no property rights to such a device. See In re Trombetta, 156 A.2d 107, 110 (Pa. 1959) (Musmanno, J., dissenting) (internal citation omitted).7 Consequently, even if a device “is similar to a slot machine” it

6 This would be the effect of the Majority’s interpretation of Subsection 5513(a)(1), discussed infra, which finds that “to be used for gambling purposes” only modifies “device.” See infra pp. 16, 18-20.

7 This reasoning is bolstered by Subsection 5513(c), which permits the possession of antique slot machines provided that they are not used for gambling purposes. See 18 Pa.C.S. § 5513(c) (defining antique slot machine as a slot machine “manufactured at least [twenty-five] years before the current year and that it was not used or attempted to be used for any unlawful purpose” and providing an exception to Subsection 5513(b) that (continued…) [J-96-2025, J-97-2025] [MO: Wecht, J.] - 12 still must be established that it is a gambling device per se or that it is used for gambling purposes to be subject to seizure and forfeiture under Subsection 5513(b). See 9 Mills Mechanical Slot Machines, 437 A.2d at 70-71 (finding that “[t]he Gold Cup machine is similar to a slot machine” and even if it was not a gambling device per se, it was undisputed that it was being “used for gambling purposes in violation of Section 5513(a)”).

Therefore, the POM device may be seized pursuant to Subsection 5513(b) if it is a gambling device per se or if it is a device used for gambling purposes in violation of Subsection 5513(a). In the context of a forfeiture, only once it has been determined that the device is a gambling device do we examine whether the gambling is “lawfully conducted” under the Gaming Act, and thus not prohibited by the Crimes Code. See 18 Pa.C.S. § 5513(e.1)(4).

The statute does not define “gambling device,” nor does any other part of the Crimes Code.8 This Court in Two Poker Machines held that the inquiry is “whether the machine is ‘so intrinsically connected with gambling’ as to constitute a gambling device per se.” Two Poker Machines, 465 A.2d at 977 (quoting Nu-Ken Novelty, Inc. v. Heller, 288 A.2d 919, 920 (Pa. Super. 1972)). In that case we held that determining whether a device is “intrinsically connected with gambling” such that it is subject to forfeiture “will turn on the characteristics of the machine when read against the three elements necessary to gambling: consideration, a result determined by chance rather

“no antique slot machine seized from any defendant shall be destroyed or otherwise altered until the defendant is given an opportunity to establish that the slot machine is an antique slot machine.” If the defendant satisfies this burden, then “the slot machine shall be returned … otherwise, the slot machine shall be destroyed.”) (emphasis added).

8 The Gaming Act also does not define “gambling device.”

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 13 than skill, and a reward.” Two Poker Machines, 465 A.2d at 977. The Majority explains that the “legal standard for evaluating the second element of gambling—skill versus chance—has come to be known as the ‘predominant factor test.’” Majority Op. at 9 (citing Pinnacle Amusement, LLC v. Bureau of Liquor Control Enf’t, 298 A.3d 447, 452 (Pa. Commw. 2023); In re Three Pa. Skill Amusement Devices, 306 A.3d 432, 442-43 (Pa. Commw. 2023)). The predominant factor test examines “the relative amounts of skill and chance present in the play of each machine and the extent to which skill or chance determines the outcome.” Two Poker Machines, 465 A.2d at 977.

Two Poker Machines involved the seizure and forfeiture of an electronic poker game, the “Electro-Sport,” and blackjack machines9 pursuant to Subsection 5513(b). In addressing whether the result was “determined by chance rather than skill” in the Electro- Sport game, the Court found that it had some element of skill because a player’s knowledge of statistics could “improve a player’s chances of winning and [could] maximize the size of the winnings[.]” Id. at 978. More importantly, however, the Court found that “a large random element [was] always present” because “chance determine[d] the cards dealt from which one [could] draw[.]” Id. Thus, the Court concluded that “[s]kill can improve the outcome in Electro-Sport; it cannot determine it.” Id. After finding that the elements of reward and consideration were present, the Court held that Electro-Sport was a gambling device per se. Id. at 978-79.

This Court has repeatedly emphasized that the Commonwealth must establish the elements of gambling to justify forfeiture. For instance, in Two Poker Machines, 465 A.2d

9 Two Poker Machines involved three cases consolidated for appeal, and the devices were not the same across each case. See Two Poker Machines, 465 A.2d at 975. Of the three devices, only the Electro-Sport was found to be a gambling device per se. Id.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 14 at 979-80, this Court addressed two electronic poker machines (not the Electro-Sport) and a blackjack machine and found that although the devices were not gambling devices per se, “they had been used for illegal gambling.” In Commonwealth v. Twelve Dodge City Video Poker Machines, 537 A.2d 812, 814 (Pa. 1988), addressing the seizure of twelve poker machines, we found that the reward element was missing from the devices and we rejected the Commonwealth’s argument that the devices could be easily altered to provide players a reward. Emphasizing the importance of the elements of gambling to justify forfeiture, we determined that “the mere possibility of using a device for gambling purposes is not what allows for its confiscation under [Subsection] 5513(b)[.]” Finally, in Commonwealth v. Irwin, 636 A.2d 1106, 1109 (Pa. 1993), we found that the reward element was absent from the seized devices because the distinctive feature of knock down switches and meters was not present and the tokens awarded to the players were worth less than the cost of playing the games. We explained that “the reasoning behind our cases holding devices with knock down switches and meters are gambling devices per se, is that there is no legal use for these mechanisms on these machines.” Irwin, 636 A.2d at 1109. However, we advised that the Commonwealth was not prevented from establishing that the machines were “actually being used in an impermissible manner.” Id. Consequently, it is not enough to establish that a device is or is not a “slot machine” wholly independent from gambling because the inquiry under Subsection 5513(b) is whether the device is a gambling device per se or it has been used for gambling purposes.

Thus, using the standard set forth in Two Poker Machines, the Court must decide whether the POM device contains all the elements of gambling to constitute a gambling device per se or whether there is evidence that the device has been used for gambling

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 15 purposes. However, before turning to the application of this test, I address the Majority’s statutory construction detour.

The “Slot Machine” Test The Majority does not apply the Two Poker Machines test to the Forfeiture Appeal to determine whether the POM device is a gambling device per se subject to forfeiture under Subsection 5513(b). The Majority approaches the case from a fundamentally different premise. Specifically, the Majority finds that the Gaming Act and the Crimes Code form a “unified statutory scheme” and that Subsection 5513(e.1) “holds the key to understanding the entire statutory scheme[,]” including, apparently, the operation of Subsection 5513(b). Majority Op. at 39. From that premise, the Majority begins its inquiry with Subsection 5513(a)(1), which defines as an offense the intentional or knowing making, assembly, setting up, etc. “of any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards.” Applying the last- antecedent rule, the Majority divorces the term “slot machine” from the qualifying phrase “to be used for gambling purposes,” concluding that a slot machine need not itself “be used for gambling purposes” to fall within the statute. Majority Op. at 58. Based on the Majority’s interpretation, setting up a slot machine is unlawful even if that slot machine is not intentionally or knowingly set up “to be used for gambling purposes.” 18 Pa.C.S. § 5513(a)(1).

Having reached that conclusion, the Majority next turns to the meaning of “slot machine.” Relying on Subsection 5513(e.1)(4), which states that activity that is “lawfully conducted” under the Gaming Act is not prohibited by the Crimes Code, the Majority reasons that courts must first “look to the Gaming Act to determine whether activities

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 16 concerning slot machines are ‘lawfully conducted.’” Id. at 40-41. In the Majority’s view, “an activity that is not lawful under the Gaming Act remains subject to Section 5513(a) of the Crimes Code.” Id. at 40 (emphasis in original). The Majority thus concludes that, because these statutes operate as a unified scheme, the Gaming Act’s definition of “slot machine” necessarily controls the meaning of that term in the Crimes Code as well.10 The Gaming Act defines “slot machine,” in pertinent part: (1) The term includes: (i) Any mechanical, electrical or computerized contrivance, terminal, machine or other device approved by the Pennsylvania Gaming Control Board which, upon insertion of a coin, bill, ticket, token or similar object therein or upon payment of any consideration whatsoever, including the use of any electronic payment system except a credit card or debit card, is available to play or operate, the play or operation of which, whether by reason of skill or application of the element of chance or both: (A) May deliver or entitle the person or persons playing or operating the contrivance, terminal, machine or other device to receive cash, billets, tickets, tokens or electronic credits to be exchanged for cash or to receive merchandise or anything of value whatsoever, whether the payoff is made automatically from the machine or manually.

* * * (iii) A skill slot machine, hybrid slot machine and the devices or associated equipment necessary to conduct Curiously, the Majority asserts that it is not reading the statutes in pari materia but merely providing a plain language interpretation of a statute. Majority Op. at 41. “Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.” 1 Pa.C.S. § 1932(a). “Statutes in pari materia shall be construed together, if possible, as one statute.” 1 Pa.C.S. § 1932(b). The Majority, by its own admission, is interpreting Section 5513 and the Gaming Act “as one statute.” Id.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 17 the operation of a skill slot machine or hybrid slot machine.

4 Pa.C.S. § 1103. A “skill slot machine” is “[a] slot machine in which the skill of the player, rather than the element of chance, is the predominant factor in affecting the outcome of the game.” Id. Finally, a “hybrid slot machine” is “[a] slot machine in which a combination of the skill of the player and elements of chance affect the outcome of the game.” Id. Since the POM devices fit within the definition of “slot machine” in the Gaming Act, according to the Majority, they are illegal under the provisions in Subsection 5513(a).

However, as explained supra, “slot machines” are only unlawful under Subsection 5513(a)(1) if they are “to be used for gambling purposes.” See supra pp. 7-11.11 In focusing on the definition of “slot machine” under Subsection 5513(a)(1), the Majority’s analysis ignores the factual and legal issues involved in the Forfeiture Appeal.

The BLCE seized the POM devices from Champions pursuant to Subsection 5513(b) which authorizes the seizure of “gambling devices,” not slot machines. As discussed supra, the Majority renders the term “used for gambling purposes” irrelevant to the definition of “slot machine” for Subsection 5513(a)(1) through its application of the last- antecedent rule and then dismisses the Appellees’ argument that the POM device is not a gambling device because the outcome is determined by skill rather than chance.

11 The Majority’s own analysis appears to concede that the Gaming Act encompasses non-gambling slot machines when it acknowledges that its interpretation could sweep within the Gaming Act (and thus, Section 5513) devices such as Skee-ball machines.

The Majority observes that “[s]hould law enforcement officers begin conducting raids of children’s amusement establishments and seizing Skee-Ball machines and stuffed animals, … the General Assembly … remains free to amend the relevant statutes to provide further for such innocuous activity[.]” Majority Op. at 62. That statement is difficult to harmonize with the Majority’s insistence that every device falling within the statutory definition of “slot machine” is necessarily a gambling device.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 18 According to the Majority, that argument “is merely to invoke the predominant factor test,” an inquiry the Majority believes was eliminated by the Gaming Act’s definition of “slot machine.” Majority Op. at 64. Rather, according to the Majority, this inquiry would only be relevant “if we needed to determine whether the device constitutes a gambling device in the abstract, such that it falls into Section 5513(a)(1)’s general clause[.]” Id. There is nothing abstract about this inquiry since the POM device must be a “gambling device” under Subsection 5513(b) to be seized and must be “used for gambling purposes” to be unlawful under Subsection 5513(a)(1). Further, the Majority’s analysis of Subsection 5513(a)(1) warrants additional discussion.

While the meaning of Subsection 5513(a)(1) is not wholly dispositive in this case, I must address the Majority’s interpretation of that provision because its reliance on the last-antecedent rule illustrates the limitations of that cannon of construction. See, e.g., Commonwealth v. Yard, 323 A.3d 762, 790-91 (Pa. 2024) (Donohue, J., dissenting) (explaining that the Majority’s application of the last-antecedent rule in construing Article I, Section 14 of the Pennsylvania Constitution produced a result that was contrary to the clearly expressed intent of the voters). Here, the Majority states that reading Subsection 5513(a)(1) to mean “that the Commonwealth [must] prove that a seized device is a ‘slot machine … to be used for gambling purposes’” is an “unintuitive reading of the text.”

Majority Op. at 57-58 (emphasis omitted). In the Majority’s view, the absence of a comma between “device” and the qualifying phrase “to be used for gambling purposes” compels the application of the last-antecedent rule because “[i]t is only when the qualifying phrase … is attached to ‘any device’ that the latter obtains a meaning that makes sense alongside the preceding list of gambling devices.” Majority Op. at 58 (emphasis

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 19 added). Under the Majority’s interpretation, then, a slot machine constitutes a gambling device regardless of whether it is used for gambling purposes.

This interpretation is untenable. A slot machine is a gambling device precisely when it is used for gambling purposes. To disregard whether a slot machine is “used for gambling purposes” would subject all punch boards, drawing cards and slot machines to the prohibition of Subsection 5513(a)(1), even those that are innocuous.12 The Majority fails to acknowledge that the three listed devices have innocuous non-gambling uses.

Rather than employ the last-antecedent rule, I would conclude that the “slot machine” referenced in Subsection 5513(a)(1) must be a gambling device—i.e., it must be a device “to be used for gambling purposes.” See 18 Pa.C.S. § 5513(a)(1); see also supra pp. 7- (discussing Subsection 5513(a)(1)).

The flaws in the Majority’s interpretation become more apparent in its reliance on Subsection 5513(e.1)(4), which the Majority characterizes as the “key” to construing Subsection 5513(a)(1). The Majority states that S[ubs]ection 5513(a)(1) sets forth criminal prohibitions relating to slot machines, and S[ubs]ection 5513(e.1)(4) unambiguously tells us to look to the Gaming Act to determine The Majority treats slot machines as sui generis and ignores that the Gaming Act, which supplies the only statutory definition of “slot machine,” was enacted in 2004—more than half a century after the term “slot machine” first appeared in the Crimes Code. See, e.g., Act of April 29, 1925, P.L. 357, No. 208, (“That it is unlawful for any person … to make, manufacture, or assemble any punch board, drawing card, slot machine, or any machine or device used or intended to be used for gambling.”). As discussed above, while the Gaming Act and Section 5513 may be read in pari materia, the General Assembly had to intend that “to be used for gambling” modifies “slot machine” because in 1925 (and in 1972) when the provision was written that term was not defined on its own as a gambling device. The construction of the text of Section 5513 cannot take on a new form merely because there is now a statutorily prescribed definition to “slot machine.” To eliminate any possible confusion: a slot machine, however defined, is not a gambling device simply because it bears the label “slot machine.” It is a gambling device only if it is “used for gambling purposes.” 18 Pa.C.S. § 5513(a)(1).

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 20 whether activities concerning slot machines are “lawfully conducted.” To conclude, then, that the definition of “slot machine” in S[ubs]ection 5513(a)(1) has nothing to do with the definition of “slot machine” in the Gaming Act requires an unduly cramped reading of the statutory scheme.

Id. at 41. According to the Majority, the inquiry begins with the Gaming Act to determine whether a device at issue for purposes of the Crimes Code is the same type of device covered by the Gaming Act. In so doing, the Majority has flipped the analysis on its head.

When reviewing a claim under Subsection 5513(b), a court must begin its analysis with whether the device is a gambling device, and only then may the court look to other laws within this Commonwealth to determine whether it is lawful. Thus, if the device is a gambling device, the next question is whether it is lawful under the Gaming Act. If it is, the licensed devices cannot be seized. If the device is not a gambling device, it is never necessary to look at the Gaming Act because plainly Subsection 5513(b) would not apply.

However, in starting with the Gaming Act, which includes non-gambling slot machines, the Majority skips the gambling analysis altogether and, as a result, subjects devices to forfeiture that are not “gambling devices.” 18 Pa.C.S. § 5513(b). While a non-gambling slot machine may be illegal under the Gaming Act because it is not licensed, the non- gambling slot machine cannot be seized under the Crimes Code. Additionally, even accepting as I do13 the Majority’s proposition that the Gaming Act and Section 5513 create a “unified statutory scheme,” the central question remains unanswered: what constitutes a “gambling device” for purposes of Subsection 5513(b)?

See 18 Pa.C.S. § 5513(b). There is no definition for “gambling” within the Gaming Act.

13 See supra note 4 (agreeing with the Majority’s conclusion that the Gaming Act and Section 5513 create a unified statutory scheme).

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 21 As mentioned above, for decades the courts have understood gambling to involve three elements: consideration, an outcome predominantly determined by chance rather than skill, and a reward.14 Two Poker Machines, 465 A.2d at 977. Under the predominant factor test, courts must determine whether the element of chance is predominant over skill. See id. This inquiry is essential to the conclusion that a device is a gambling device per se under Subsection 5513(b). The consequence of the Majority’s holding, however, is that by removing consideration of chance from the definition of “slot machine,” the General Assembly also implicitly eliminated that consideration from the class of devices subject to forfeiture under Subsection 5513(b). See Majority Op. at 65 (concluding that “[w]e need not conduct [the] inquiry” of whether the device satisfies the predominant factor test). However, if a slot machine is not a gambling device per se, then Subsection 5513(b) does not apply to it absent proof that it is used for gambling purposes. Had the General Assembly intended to abrogate the test established in Two Poker Machines and its progeny governing what constitutes a gambling device subject to forfeiture under Subsection 5513(b), it would have done so expressly by amending the Crimes Code to eliminate the consideration of chance from the definition of “gambling device” established in this Court’s precedent.15 See Thompson, 223 A.3d at 1277 (discussing the doctrine of

14 The fate of the predominant factor test under Section 5513 is unclear under the Majority’s interpretation because it believes that the General Assembly eliminated that test when it adopted the current definition of skill and hybrid slot machines in the Gaming Act. See Majority Op. at 19-20 (explaining that the General Assembly eliminated the consideration of chance versus skill as a factor when defining “slot machine” in the Gaming Act).

15 The Majority contends that “[t]he General Assembly did expressly ‘eliminate the consideration of chance’ from the definition of a ‘slot machine’” when it added skill and hybrid slot machines to that definition thereby rendering “irrelevant any consideration of the distinction between skill and chance.” Majority Op. at 59 n.214 (emphasis in original). (continued…) [J-96-2025, J-97-2025] [MO: Wecht, J.] - 22 expressio unius est exclusio alterius and recognizing that, “as a matter of statutory interpretation, ‘although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say’”) (internal citation omitted); 1 Pa.C.S. § 1922(4) (a court may presume “[t]hat when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be place upon such language”). Because the General Assembly did not do so, our decision in Two Poker Machines remains the controlling authority defining gambling devices within this Commonwealth.

Application of the Predominant Factor Test Because Two Poker Machines is controlling in this case, the dispositive inquiry is whether the outcome of playing on the POM device is predominantly driven by chance or skill.16 The operation of the POM device is undisputed by the parties. In re Three Pa. Skill Amusement Devices, Trial Court Opinion, 3/23/2023, at 5. The game begins after a player has inserted cash into the machine; the cash is then converted to points. Id. The game displays nine symbols arranged in a three-by-three grid resembling a “tic-tac-toe” board. Once the player presses “Play,” the symbols begin to spin. Id. On the side of the

On that narrow point, there is little disagreement. As explained above, the General Assembly plainly broadened the statutory definition of “slot machine.” See supra p. 17- 18. The difficulty is that the Majority quietly substitutes “gambling device” for “slot machine” and proceeds as though the two terms are interchangeable. They are not. The General Assembly amended the definition of “slot machine;” it did not define “gambling,” nor did it declare that every device labeled a slot machine is a gambling device per se.

This Court has never interpreted Subsection 5513(b) to mean all punchboards, drawing cards, and slot machines are gambling devices per se. Rather, we have held that a gambling device per se is one that contains the three elements necessary to gambling.

Two Poker Machines, 465 A.2d at 977-78.

16 The elements of consideration and reward are undisputed by the parties.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 23 screen are pay lines which represent winning symbol combinations and the corresponding point values for each combination. After the symbols stop spinning, the object is to match three symbols in as many pay lines as possible by placing a “wild” symbol when prompted. Id. Depending upon the resulting combination, the player can either win, resulting in a reward of at least 105% of the initial wager; hit, resulting in a reward of less than 105%; or lose. In the event of a hit or a loss, the player is presented with an option to play a second phase of the game, “Follow Me,” a memory-style game through which the player may recover up to 105% of their wager upon successful completion. Id. Notably, however, a player who wins the initial game is never offered the “Follow Me” feature. Id.; In re Three Pa. Skill Amusement Devices, 306 A.3d 432, 436 (Pa. Commw. 2023).

Chance, not skill, determines a player’s outcome when using the POM device. The initial phase of the POM device is undisputedly akin to a traditional gambling slot machine: randomly produced combinations of images on spinning reels which determine whether the player wins, loses, receives a partial payout, or becomes eligible to proceed to additional rounds or games. Although “Follow Me” may permit a player to exercise their memory and attentiveness, it is only available to the player upon the operation of chance.

A player who immediately hits the jackpot or merely wins more than 105% of their wager and cashes out is never given the opportunity to utilize his or her alleged skill. Thus, whether a player may engage in the purportedly skill-based component of the game is itself wholly dependent upon the chance-driven operation of the initial spin.

The Commonwealth Court nevertheless concluded that the POM device was not a gambling device because it focused almost exclusively on the finding that “a patient and

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 24 skillful player could win at least 105% of the amount played on each and every play by utilizing the Follow Me feature.” In re Three Pa. Skill Amusement Devices, 306 A.3d at 445. This reasoning misconstrues the governing inquiry. The relevant question is not whether skill can improve a player’s outcome after the operation of chance has already occurred, but whether skill predominates in determining the overall result of the game. In Two Poker Machines, this Court explained that it is not enough for skill to merely influence or enhance the player’s return; rather, skill must determine the outcome. See Two Poker Machines, 465 A.2d at 978. There, we acknowledged that the exercise of a player’s skill could “improve a player’s chance of winning” or “maximize the size of the winnings,” yet we concluded that the Electro-Sport was a gambling device because chance controlled the cards dealt and therefore dictated the essential nature of the game. Id. The same principle governs here.

Further, the lower court’s myopic analysis ignores a critical aspect of the POM device’s gameplay—a player is not offered “Follow Me” on “each and every play.” See Trial Court Opinion, 3/23/2023, at 5 (explaining that “Follow Me” is offered only after a hit or a loss). Access to “Follow Me” depends entirely upon the result of the initial chance- based game. Indeed, not only does the initial game determine whether the player may play “Follow Me” at all, it is also the only way a player will ever be eligible for more than 105% of their wager. No amount of skill will make the player eligible for the top prize. An important aspect of gambling is not merely whether chance or skill is predominant in determining whether the player wins or loses, but also the relative amount of the player’s winnings or losses. As this Court observed in Commonwealth v. Irwin, “[i]t is this hope of gaining something beyond the amount played which motivates people to gamble and

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 25 creates the dangers associated with gambling.” Commonwealth v. Irwin, 636 A.2d 1106, 1108 (Pa. 1993). Here, it is the chance-based initial phase of the POM device that creates that inducement. Skill may permit a player to recover their investment after their luck has already been tested by the reels, but it does not determine whether the player may access that opportunity in the first instance, nor does it determine the player’s eligibility for the most significant winnings offered by the POM device.17 Thus, because chance predominates both the player’s eligibility for winnings and the magnitude of those winnings, the POM device is a gambling device per se and was subject to seizure and forfeiture under Subsection 5513(b).

Conclusion For the foregoing reasons, I join in the holdings of the Majority as described at the outset of this opinion in the Declaratory Judgment Appeal, and I concur in the result of the Majority in the Declaratory Judgment Appeal reversing the judgment of the Commonwealth Court. As to the propriety of the seizure and forfeiture of the POM devices at issue in the Forfeiture Appeal, I concur in the result reached by the Majority insofar as it concludes that the devices were subject to seizure and forfeiture. In my view, this case must be decided based on the application of our precedent to determine whether the POM devices are gambling devices. Our precedent has established that whether a device is a gambling device turns on the presence of three elements necessary for

17 The fact that the payout upon successful completion of “Follow Me” is 105%, resulting in 5% more than the wager, does not change this analysis. The maximum wager that may be placed is four dollars. Trial Court Opinion, 3/23/2023, at 5. If a player successfully completes “Follow Me,” the maximum they will have won is twenty cents. The player would be unable to receive these twenty cents until they have won “Follow Me” four additional times, as the POM device only permits a player to cash out in whole dollar amounts and rounds down to the nearest dollar. Id. at 6.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 26 gambling: consideration, a result determined by chance rather than skill, and a reward.

Two Poker Machines, 465 A.2d at 977. The element of gambling in dispute in the Forfeiture Appeal is whether the result of the POM device is determined predominantly by chance or skill. Applying our precedent to the Forfeiture Appeal, I would find that the element of chance is predominant in the POM device. Thus, because the POM devices are gambling devices, the seizure and forfeiture were proper under Subsection 5513(b) of the Crimes Code.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 27

[J-96-2025, J-97-2025] [MO: Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

IN RE: THREE PENNSYLVANIA SKILL : No. 50 MAP 2024 AMUSEMENT DEVICES, ONE GREEN BANK : BAG CONTAINING $525.00 IN U.S. : Appeal from the Order of the CURRENCY, AND SEVEN RECEIPTS : Commonwealth Court at No. 707 : CD 2023 entered on November : 30, 2023, Affirming the Lower APPEAL OF: COMMONWEALTH OF : Court Order of the Dauphin PENNSYLVANIA : County Court of Common Pleas at : No. 2022-CV-06333-MD entered : on March 23, 2023 : : ARGUED: November 20, 2025 POM OF PENNSYLVANIA, LLC : No. 2 EAP 2024 : : Appeal from the Order of the v. : Commonwealth Court entered on : January 16, 2024, at No. 418 MD : 2018.

COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF REVENUE, AND CITY OF : ARGUED: November 20, 2025 PHILADELPHIA, : : : APPEAL OF: COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : REVENUE :

CONCURRING AND DISSENTING OPINION JUSTICE BROBSON DECIDED: June 15, 2026 I agree with the Majority that the Pennsylvania Race Horse Development and Gaming Act (Gaming Act)1 and Section 5513 of the Crimes Code2 “work in tandem to 4 Pa. C.S. §§ 1101-1904.

2 18 Pa. C.S. § 5513. identify the scope of lawful gambling activities [in Pennsylvania], particularly as it concerns the lawful operation of slot machines.” (Maj. Op. at 39.) As the Majority observes, these statutes demonstrate that “activities that are ‘lawfully conducted’ under the Gaming Act are . . . not prohibited under the Crimes Code, but an activity that is not lawful under the Gaming Act remains subject to Section 5513(a) of the Crimes Code.” (Id. at 40 (emphasis in original) (footnote omitted) (quoting 18 Pa. C.S. § 5513(e.1)(4)).)

With this interplay established, I further agree with the Majority that, in In re: Three Pennsylvania Skill Amusement Devices, One Green Bank Bag Containing $525.00 in U.S. Currency, and Seven Receipts, 306 A.3d 432 (Pa. Cmwlth. 2023) (en banc) (Three Devices), the Commonwealth Court erred by declining to look to the definition of “slot machine” provided in the Gaming Act to define that same term as used in Section 5513(a)(1) of the Crimes Code. This, in turn, led to the Commonwealth Court’s erroneous holding that the slot machines at issue were not unlawful “slot machines” under Section 5513(a)(1) of the Crimes Code. Accordingly, I fully join the Majority Opinion insofar as it reverses the Commonwealth Court’s order in the Three Devices case.

I depart from the Majority, however, with respect to its analysis and disposition of the appeal in POM of Pennsylvania, LLC v. Department of Revenue, 221 A.3d 717 (Pa. Cmwlth. 2019) (en banc) (POM). That appeal emanates from an order of the Commonwealth Court that denied an application filed by the Commonwealth of Pennsylvania, Department of Revenue (Revenue), seeking summary relief on a counterclaim that Revenue asserted against POM of Pennsylvania, LLC (POM).3 In its counterclaim, Revenue sought to cast the Gaming Act as a comprehensive regulation of

3 The Commonwealth Court’s order, dated November 20, 2019, became final and appealable when the Commonwealth Court dismissed the counterclaim by separate order on January 16, 2024.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 2 all slot machines in the Commonwealth of Pennsylvania. It asked the Commonwealth Court to declare that (a) the Gaming Act regulates the manufacture, possession and operation of slot machines; (b) the Gaming Act and its attendant regulations prohibit any person from possessing a slot machine unless lawfully manufactured by a licensed manufacturer; (c) the Gaming Act prohibits the possession and operation of any slot machines unless on the premises of a licensed casino facility; (d) POM’s [machine] is an illegal gambling device under Title 4; (e) [POM’s machine] is a “slot machine” under 4 Pa. C.S. §[ ]1103 and subject to a daily tax of 34% of its gross terminal revenue under Pa. C.S. §[ ]1403(b); and (f) POM is a “manufacturer” and/or “supplier” under 4 Pa. C.S. §[ ]1103 and is required to have a license issued by the Pennsylvania Gaming Control Board [(Board)] under 4 Pa. C.S. §§[ ]1317 and/or 1317.1[.] (Reproduced Record (R.R.) at 106a.) Revenue further sought the entry of an order that would (a) compel POM “to remove its machines from all Pennsylvania establishments” and (b) direct POM to “cease further sale and distribution of its machines” in Pennsylvania until it obtains appropriate licensure by the Board under the Gaming Act. (Id.) As just explained, the Gaming Act provides for limited authority to engage in gambling that would otherwise be illegal under Section 5513 of the Crimes Code. To my mind, the Gaming Act does so not simply by how it defines terms like “slot machine,” “manufacturer,” and “supplier” in Section 1103, but also by how it uses those defined terms in the law’s operative provisions. Specifically, the Gaming Act only permits limited lawful gambling, inclusive of slot machines, in the Commonwealth in facilities licensed by the Board—i.e., “slot machine licensees”—and caps the number of slot machine licenses that the Board may issue. 4 Pa. C.S. §§ 1103 (providing definitions of “slot machine license” and “slot machine licensee”), 1301-1305.1 (outlining categories of slot machine licenses), 1307 (setting caps on number of slot machine licenses).

As for manufacturers, the Gaming Act requires any person who seeks to manufacture slot machines “for use in this Commonwealth” to obtain a license from the

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 3 Board. 4 Pa. C.S. § 1317.1(a). As noted above, however, slot machines are only lawful “for use in this Commonwealth” in facilities licensed by the Board. Accordingly, a manufacturer license is required for any person who seeks to manufacture a slot machine for use in this Commonwealth by a Board-licensed facility in the Commonwealth. Even if one falls within the definition of a “manufacturer” under Section 1103 of the Gaming Act, if a manufacturer does not seek permission to use its slot machine in Board-licensed facilities in the Commonwealth, it is not required to secure a manufacturer license under Section 1317.1. Indeed, a manufacturer license from the Board is not available to a manufacturer that exclusively offers its machines for use in unlicensed facilities within the Commonwealth.

As for suppliers, the Gaming Act only requires a person to secure a supplier license from the Board if that person seeks “to provide slot machines . . . to a slot machine licensee, an interactive gaming certificate holder or an interactive gaming operator within this Commonwealth through a contract with a licensed manufacturer.” 4 Pa. C.S.

§ 1317(a). Accordingly, even if one falls within the definition of “supplier” in Section 1103 of the Gaming Act, if a supplier does not seek to supply slot machines to licensed or certificated facilities through a contract with a licensed manufacturer, then the supplier need not secure a license under the Gaming Act.

While POM may technically fall within the definitions of “manufacturer” and “supplier” within Section 1103 of the Gaming Act, and its machines may likewise qualify as “slot machines” thereunder, POM does not purport to manufacture or supply its slot machines for use within licensed or certified gaming facilities under the Board’s jurisdiction. Indeed, POM’s activities within the Commonwealth that are the subject of these appeals exclusively relate to the manufacture and supply of slot machines for use in facilities that are not licensed by the Board and, therefore, are engaging in illegal

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 4 gambling in violation of Section 5513 of the Crimes Code. Manufacturer and supplier licenses under the Gaming Act are not available to manufacturers and suppliers who seek to facilitate illegal gaming in the Commonwealth by placing their machines in unlicensed facilities.

For these reasons, I would conclude that Revenue is not entitled to its requested relief to the extent that request was premised on the theory that POM’s activities of manufacturing and supplying slot machines to unlicensed facilities within this Commonwealth required POM to secure a manufacturer license and/or supplier license under the Gaming Act and that the daily gross terminal revenue tax of 34% that slot machine licensees must pay under Section 1403(b) of the Gaming Act applies to POM’s slot machines in unlicensed facilities throughout the Commonwealth. As such, and any flawed reasoning aside, the Commonwealth Court appropriately denied Revenue’s application for summary relief and dismissed its counterclaim. Accordingly, I would affirm the order of the Commonwealth Court in the POM matter.

Justice Mundy joins this concurring and dissenting opinion.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 5