Opinion

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

Court
Supreme Court of Pennsylvania
Filed
Jun 15, 2026
Status
Published
Author
Brobson, P. Kevin
On the bench
Wecht, David N.; Donohue, Christine; Brobson, P. Kevin
Cited by
0 cases

The opinion

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

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

IN RE: THREE PENNSYLVANIA SKILL : No. 50 MAP 2024

AMUSEMENT DEVICES, ONE GREEN BANK :

BAG CONTAINING $525.00 IN U.S. : Appeal from the Order of the

CURRENCY, AND SEVEN RECEIPTS : Commonwealth Court at No. 707

: CD 2023 entered on November

: 30, 2023, Affirming the Lower

APPEAL OF: COMMONWEALTH OF : Court Order of the Dauphin

PENNSYLVANIA : County Court of Common Pleas at

: No. 2022-CV-06333-MD entered

: on March 23, 2023

:

: ARGUED: November 20, 2025

POM OF PENNSYLVANIA, LLC : No. 2 EAP 2024

:

: Appeal from the Order of the

v. : Commonwealth Court entered on

: January 16, 2024, at No. 418 MD

: 2018.

COMMONWEALTH OF PENNSYLVANIA, :

DEPARTMENT OF REVENUE, AND CITY OF : ARGUED: November 20, 2025

PHILADELPHIA, :

:

:

APPEAL OF: COMMONWEALTH OF :

PENNSYLVANIA, DEPARTMENT OF :

REVENUE :

CONCURRING AND DISSENTING OPINION

JUSTICE BROBSON DECIDED: June 15, 2026

I agree with the Majority that the Pennsylvania Race Horse Development and

Gaming Act (Gaming Act)1 and Section 5513 of the Crimes Code2 “work in tandem to

1 4 Pa. C.S. §§ 1101-1904.

2 18 Pa. C.S. § 5513.

identify the scope of lawful gambling activities [in Pennsylvania], particularly as it

concerns the lawful operation of slot machines.” (Maj. Op. at 39.) As the Majority

observes, these statutes demonstrate that “activities that are ‘lawfully conducted’ under

the Gaming Act are . . . not prohibited under the Crimes Code, but an activity that is not

lawful under the Gaming Act remains subject to Section 5513(a) of the Crimes Code.”

(Id. at 40 (emphasis in original) (footnote omitted) (quoting 18 Pa. C.S. § 5513(e.1)(4)).)

With this interplay established, I further agree with the Majority that, in In re: Three

Pennsylvania Skill Amusement Devices, One Green Bank Bag Containing $525.00 in

U.S. Currency, and Seven Receipts, 306 A.3d 432 (Pa. Cmwlth. 2023) (en banc) (Three

Devices), the Commonwealth Court erred by declining to look to the definition of “slot

machine” provided in the Gaming Act to define that same term as used in

Section 5513(a)(1) of the Crimes Code. This, in turn, led to the Commonwealth Court’s

erroneous holding that the slot machines at issue were not unlawful “slot machines” under

Section 5513(a)(1) of the Crimes Code. Accordingly, I fully join the Majority Opinion

insofar as it reverses the Commonwealth Court’s order in the Three Devices case.

I depart from the Majority, however, with respect to its analysis and disposition of

the appeal in POM of Pennsylvania, LLC v. Department of Revenue, 221 A.3d 717 (Pa.

Cmwlth. 2019) (en banc) (POM). That appeal emanates from an order of the

Commonwealth Court that denied an application filed by the Commonwealth of

Pennsylvania, Department of Revenue (Revenue), seeking summary relief on a

counterclaim that Revenue asserted against POM of Pennsylvania, LLC (POM).3 In its

counterclaim, Revenue sought to cast the Gaming Act as a comprehensive regulation of

3 The Commonwealth Court’s order, dated November 20, 2019, became final and

appealable when the Commonwealth Court dismissed the counterclaim by separate order

on January 16, 2024.

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 2

all slot machines in the Commonwealth of Pennsylvania. It asked the Commonwealth

Court to declare

that (a) the Gaming Act regulates the manufacture, possession and

operation of slot machines; (b) the Gaming Act and its attendant regulations

prohibit any person from possessing a slot machine unless lawfully

manufactured by a licensed manufacturer; (c) the Gaming Act prohibits the

possession and operation of any slot machines unless on the premises of

a licensed casino facility; (d) POM’s [machine] is an illegal gambling device

under Title 4; (e) [POM’s machine] is a “slot machine” under 4 Pa. C.S. §[

]1103 and subject to a daily tax of 34% of its gross terminal revenue under

4 Pa. C.S. §[ ]1403(b); and (f) POM is a “manufacturer” and/or “supplier”

under 4 Pa. C.S. §[ ]1103 and is required to have a license issued by the

Pennsylvania Gaming Control Board [(Board)] under 4 Pa. C.S. §§[ ]1317

and/or 1317.1[.]

(Reproduced Record (R.R.) at 106a.) Revenue further sought the entry of an order that

would (a) compel POM “to remove its machines from all Pennsylvania establishments”

and (b) direct POM to “cease further sale and distribution of its machines” in Pennsylvania

until it obtains appropriate licensure by the Board under the Gaming Act. (Id.)

As just explained, the Gaming Act provides for limited authority to engage in

gambling that would otherwise be illegal under Section 5513 of the Crimes Code. To my

mind, the Gaming Act does so not simply by how it defines terms like “slot machine,”

“manufacturer,” and “supplier” in Section 1103, but also by how it uses those defined

terms in the law’s operative provisions. Specifically, the Gaming Act only permits limited

lawful gambling, inclusive of slot machines, in the Commonwealth in facilities licensed by

the Board—i.e., “slot machine licensees”—and caps the number of slot machine licenses

that the Board may issue. 4 Pa. C.S. §§ 1103 (providing definitions of “slot machine

license” and “slot machine licensee”), 1301-1305.1 (outlining categories of slot machine

licenses), 1307 (setting caps on number of slot machine licenses).

As for manufacturers, the Gaming Act requires any person who seeks to

manufacture slot machines “for use in this Commonwealth” to obtain a license from the

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 3

Board. 4 Pa. C.S. § 1317.1(a). As noted above, however, slot machines are only lawful

“for use in this Commonwealth” in facilities licensed by the Board. Accordingly, a

manufacturer license is required for any person who seeks to manufacture a slot machine

for use in this Commonwealth by a Board-licensed facility in the Commonwealth. Even if

one falls within the definition of a “manufacturer” under Section 1103 of the Gaming Act,

if a manufacturer does not seek permission to use its slot machine in Board-licensed

facilities in the Commonwealth, it is not required to secure a manufacturer license under

Section 1317.1. Indeed, a manufacturer license from the Board is not available to a

manufacturer that exclusively offers its machines for use in unlicensed facilities within the

Commonwealth.

As for suppliers, the Gaming Act only requires a person to secure a supplier license

from the Board if that person seeks “to provide slot machines . . . to a slot machine

licensee, an interactive gaming certificate holder or an interactive gaming operator within

this Commonwealth through a contract with a licensed manufacturer.” 4 Pa. C.S.

§ 1317(a). Accordingly, even if one falls within the definition of “supplier” in Section 1103

of the Gaming Act, if a supplier does not seek to supply slot machines to licensed or

certificated facilities through a contract with a licensed manufacturer, then the supplier

need not secure a license under the Gaming Act.

While POM may technically fall within the definitions of “manufacturer” and

“supplier” within Section 1103 of the Gaming Act, and its machines may likewise qualify

as “slot machines” thereunder, POM does not purport to manufacture or supply its slot

machines for use within licensed or certified gaming facilities under the Board’s

jurisdiction. Indeed, POM’s activities within the Commonwealth that are the subject of

these appeals exclusively relate to the manufacture and supply of slot machines for use

in facilities that are not licensed by the Board and, therefore, are engaging in illegal

[J-96-2025, J-97-2025] [MO: Wecht, J.] - 4

gambling in violation of Section 5513 of the Crimes Code. Manufacturer and supplier

licenses under the Gaming Act are not available to manufacturers and suppliers who seek

to facilitate illegal gaming in the Commonwealth by placing their machines in unlicensed

facilities.

For these reasons, I would conclude that Revenue is not entitled to its requested

relief to the extent that request was premised on the theory that POM’s activities of

manufacturing and supplying slot machines to unlicensed facilities within this

Commonwealth required POM to secure a manufacturer license and/or supplier license

under the Gaming Act and that the daily gross terminal revenue tax of 34% that slot

machine licensees must pay under Section 1403(b) of the Gaming Act applies to POM’s

slot machines in unlicensed facilities throughout the Commonwealth. As such, and any

flawed reasoning aside, the Commonwealth Court appropriately denied Revenue’s

application for summary relief and dismissed its counterclaim. Accordingly, I would affirm

the order of the Commonwealth Court in the POM matter.

Justice Mundy joins this concurring and dissenting opinion.

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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