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

1 Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. §§ 1101-1904

(“Gaming Act”). Although the Commonwealth Court published its en banc decision in

POM in 2019, the court’s order was interlocutory, leaving this Court without appellate

jurisdiction at that time. The court did not enter a final, appealable order in the POM

litigation until January 16, 2024. The Department technically appeals from that order.

2 18 Pa.C.S. § 5513(a). Throughout this opinion, otherwise-unqualified uses of

“Section 5513” refer to this section of the Crimes Code.

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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

3 See Better Bets Ventures, LLC v. Pa. Gaming Control Bd., 332 A.3d 1204 (Pa.

2025) (holding that Gaming Control Board may not make adverse character judgments

against license applicants based solely upon participation in “skill game” industry); id. at

1225 (“Regardless of the legality of ‘skill games’ as they have proliferated in

Pennsylvania, the industry that has sprung up around them involves thousands of

Pennsylvanians who are under the impression that they are operating fully within the

bounds of the law. They have been led to believe this through court rulings and through

the representations of the device manufacturers and their lawyers. Given this landscape,

it is reasonable for these individuals to believe that they are doing nothing wrong.”).

4 See, e.g., 4 Pa.C.S. § 1102 (articulating the “public policy purposes” of the Gaming

Act).

[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.

5 See Act of October 30, 2017, P.L. 419, No. 42, § 3 (“Act 42 of 2017”); 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.”) (added by

Act 42 of 2017).

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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

6 Section 5513 was an original component of the modern Crimes Code, which the

General Assembly overhauled and codified through the Act of December 6, 1972, P.L.

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).

7 18 Pa.C.S. § 5513(a) (emphasis added).

8 Id. § 5513(b).

[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

9 The immediately preceding section of the Crimes Code, which concerns “unlawful

lotteries or numbers games” provides an express definition for the word “unlawful,” i.e.,

“not specifically authorized by law.” 18 Pa.C.S. § 5512(a), (d). Shortly after the

enactment of Section 5513, our Superior Court concluded that the word “unlawful” in

Section 5513 shares this meaning. See Commonwealth v. Betres, 352 A.2d 495, 498

(Pa. Super. 1975) (“There is no reason why the legislature would have intended ‘unlawful’

to have any different meaning in Section 5513 than it was given in Section 5512.

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).

11 The Gaming Act is Part II of Title 4 of the Pennsylvania Consolidated Statutes,

added by the Act of July 5, 2004, P.L. 572, No. 71.

[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

12 465 A.2d 973 (Pa. 1983) (“Two Poker Machines”).

13 Id. at 975. Two Poker Machines also addressed “the distinct but related issue of

the power of a court to order the seizure and forfeiture of a machine which while not a

gambling device per se is shown to have been used for gambling purposes.” Id. This

Court concluded that such a device lawfully may be seized and subjected to forfeiture

under Section 5513(b) of the Crimes Code, provided that the owner fails to prove that he

was unaware of the unlawful use of the device. See id. at 979-81.

14 Id. at 977 (citing Nu-Ken Novelty, 288 A.2d at 920).

15 Id. (emphasis in original).

[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)).

17 Id. (emphasis added).

18 Id.

19 Id.

20 Id. (emphasis in original).

21 Id.

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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

22 Id. at 978.

23 Id.

24 Id.

25 Id.

26 Id. (emphasis added); see also id. at 978-79 (“[T]he Electro-Sport Draw Poker

Machine manifests all three features necessary for it to be classified a gambling device

per se. Consideration is clearly present, chance determines the ultimate outcome despite

the presence of certain skill elements, and the totality of the circumstances indicates that

a reward element is present.”).

27 Pinnacle Amusement, LLC v. Bureau of Liquor Control Enf’t, 298 A.3d 447, 452

(Pa. Cmwlth. 2023) (citing Two Poker Machines, 465 A.2d at 977); see also Three

Devices, 306 A.3d at 442-43 (discussing the predominant factor test). We note that courts

sometimes use the word “predominate” factor rather than “predominant,” as the

Commonwealth Court did in Pinnacle and in Three Devices. Although we use

“predominant” as the preferred adjective form, this is a distinction without a difference.

[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

725 (“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.”).

29 POM, Petition for Review ¶ 1 (“POM distributes software for a skill-based video

game machine, called the Pennsylvania SkillTM Amusement Device 402.49 PEN (the ‘Skill

Game’), throughout the Commonwealth of Pennsylvania . . . .”); ¶ 56 (“POM designs and

sells the essential components of the Skill Game, which is manufactured and distributed

by others.”) In the record of these appeals, “POM” sometimes is used interchangeably

with the affiliated entity Pace-O-Matic, Inc., a corporation organized under the laws of

Wyoming with its principal place of business in Duluth, Georgia. See Three Devices, 306

A.3d at 436 n.2 (“The devices are electronic games developed by Pace-O-Matic, Inc.”);

Three Devices, Amicus Br. of Pace-O-Matic, Inc. at 1 (stating that Pace-O-Matic, Inc.,

i.e., “POM,” “developed, produced, and licenses the electronic skill games at issue in this

litigation”).

[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

30 See Three Devices, Trial Ct. Op., 3/23/2023, at 5 (noting that “there is no dispute

as to the actual gameplay of the POM Machines”). The following account is sourced from

the trial court’s findings of fact as set forth in its opinion, supplemented as necessary with

POM’s own averments from its Petition for Review in the POM litigation.

31 POM, Petition for Review ¶ 14 (“The primary game the Skill Game offers is a ‘Tic-

Tac-Toe’ style puzzle . . . .”); Three Devices, Appellees’ Br. at 15 (referring to same as

the “base game”).

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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

32 Three Devices, Trial Ct. Op., 3/23/2023, at 8.

33 The device also provides periodic “bonus sessions” that feature different gameplay

elements, but they are not represented to this Court as constituting a legally significant

“skill” element, and they are not a focus of the parties’ arguments. See POM, Petition for

Review ¶ 24 (“The bonus sessions . . . consist of a process that delivers the bonus points

to a player that were already determined by the outcome of the Tic-Tac-Toe

game. . . . [T]he bonus session simply is an entertaining way to deliver to the player 100%

of the reward the player already earned in the Tic-Tac-Toe game.”).

34 Originally produced by the Milton Bradley Company in 1978, “Simon” is now a

registered trademark of Hasbro, Inc.

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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

35 See POM, Petition for Review ¶ 27 (“Follow Me” requires the player to “follow the

sequences for 25 rounds of play, with each sequence adding another circle.”).

36 Three Devices, Commonwealth’s Br. at 11-15, 17-18, 20-21, 25, 28-37.

37 Id. at 24 (emphasis in original).

38 Id. at 37-40.

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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

39 Id. at 37.

40 Id. at 31.

41 Three Devices, Appellees’ Br. at 46.

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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.

43 Id. at 10 (“[W]e specifically find that the question of whether these machines are

games of skill or games of chance depends solely on the machines themselves and not

on how a player plays them.”).

44 In re Pace-O-Matic, Inc. Equip., Terminal I.D. No. 142613, M.D. 965-2013 (C.C.P.

Beaver Cnty. Dec. 23, 2014) (the “Beaver County case”); see POM, Petition for Review

¶ 48-49 (discussing the Beaver County case and various District Attorneys’ responses to

the decision); Three Devices, Appellees’ Br. at 57-58 (discussing the Beaver County

case).

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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.”).

46 See Act of January 7, 2010, P.L. 1, No. 1.

47 See Act 42 of 2017, supra n.5, § 25; see 4 Pa.C.S. §§ 13B01-13B63, 13C01-

13C71. Act 42 further authorized “fantasy contests” and “video gaming,” although these

(continued…)

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Helpfully, the General Assembly specifically articulated its intent and objectives

when drafting the Gaming Act. Most importantly, our legislature declared that the “primary

objective” of the Gaming Act “to which all other objectives and purposes are secondary

is to protect the public through the regulation and policing of all activities involving gaming

and practices that continue to be unlawful.”48 To that end, the General Assembly

expressly declared ten separate times that it intended to authorize only “limited gaming.”49

In order to facilitate the “regulation and policing” of the “limited gaming” that it authorized,

the Gaming Act established the Pennsylvania Gaming Control Board and granted it the

authority to, inter alia, promulgate regulations, to grant licenses to casinos and other

persons and entities required to be licensed under the Act, and to enforce compliance

with the Act through the levying of fines, imposition of sanctions, or suspension or

revocation of licenses.50, 51

provisions lie elsewhere in Title 4 of the Pennsylvania Consolidated Statutes, rather than

the Gaming Act. See 4 Pa.C.S. §§ 301-42, 3101-4506.

48 4 Pa.C.S. § 1102(1).

49 Id. § 1102(2), (3), (3.1), (3.2), (4), (5), (6), (7), (8), (13).

50 See Id. §§ 1201-14.

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).

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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).

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(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).

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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

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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.

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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).

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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.

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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).

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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)).

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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.

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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).

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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).

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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.

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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.

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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.

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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).

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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).

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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.

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“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).

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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.

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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).

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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).

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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).

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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).

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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).

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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).

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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).

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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).

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“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).

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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).

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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.”).

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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).

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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).

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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.

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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).

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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).

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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).

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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…)

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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”).

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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…)

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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).

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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.”).

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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…)

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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”).

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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.

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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…)

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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).

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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.

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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.

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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.

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