Gracie Technologies, Inc. v. Com. of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gracie Technologies, Inc., Fraternal Order : of Eagles Conemaugh Aerie No. 1811, : Appellants : : v. : No. 627 C.D. 2019 : ARGUED: February 13, 2020 Commonwealth of Pennsylvania :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: March 13, 2020

Gracie Technologies, Inc. (Gracie Technologies), and the Fraternal Order of Eagles Conemaugh Aerie No. 1811 (Fraternal Order of Eagles) appeal from an order of the Court of Common Pleas of Cambria County (trial court) denying their motion for return of seized property from the Commonwealth, namely five SkillTouch Multi-Game (SkillTouch) machines and $1,076 in cash seized from the Fraternal Order of Eagles. Gracie Technologies and the Fraternal Order of Eagles argue that the SkillTouch machines are games of skill and not gambling machines, as found by the trial court. Upon a complaint of illegal gambling, a Pennsylvania State Police Liquor Control Enforcement officer conducted several undercover visits to the Fraternal Order of Eagles from December 2016 to June 2017. During those visits, the officer played several games on the SkillTouch machines. These machines required consideration for play and rewards (i.e., money) were awarded based on his

play. In June 2017, at the conclusion of the investigation, the SkillTouch machines in question and money were seized. The SkillTouch machines contained thirteen game themes comprising three types of games, which are described in the trial court’s opinion. [See Op., Gracie Techs., Inc. v. Commonwealth, (C.C.P. Cambria, No. MD 162-2017, filed April 26, 2019) (Bernstein, J.) (attached hereto)]. In August 2018, QP Industries, Inc. and the Fraternal Order of Eagles filed a motion for return of seized property pursuant to Rule 588 of the Pennsylvania Rules of Criminal Procedure. An unopposed motion to substitute Gracie Technologies for QP Industries, Inc., was granted in June 2018. After a hearing during which both parties presented expert testimony and briefing, the trial court denied the motion for return of seized property. On appeal,1 Gracie Technologies raises the following issues:

1. Whether the [t]rial [c]ourt abused its discretion and erred as a matter of law, when it determined that chance predominated over skill with respect to the SkillTouch machine, based on the [c]ourt's primary focus that the outcome was in a finite sequential order?

2. Based upon expert testimony, did Gracie [Technologies] meet the standard for the predominant factor test that skill predominated rather than chance with respect to the subject skill game?

(Appellants’ Br. at 5.)

1 Our review in this case of forfeiture is limited to determining whether the trial court’s findings of fact are supported by competent evidence and whether the trial court committed an error of law. Commonwealth v. $301,360.00 U.S. Currency, 182 A.3d 1091, 1096 n.2 (Pa. Cmwlth. 2018).

The trial court ably addressed the issues in the case based on its findings and the controlling statute, 18 Pa. C.S. § 5513(a), as well as binding precedent, see Commonwealth v. Two Electronic Poker Game Machines, 465 A.2d 973 (Pa. 1983); see also Commonwealth v. Dent, 992 A.2d 190 (Pa. Super. 2010) (holding that Texas Hold ‘Em poker was predominantly a game of chance because “while . . . skill can determine the outcome of a poker game, players are subject to defeat at the turn of the cards”) (footnote omitted). (Op., Gracie Techs. Inc.)2 Given the trial court’s supported findings of fact based on expert testimony, we agree with its conclusion that the machines in question are gambling machines prohibited under the statute. Accordingly, we affirm based on the trial court’s opinion.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior Judge

Judge Crompton did not participate in the decision for this case.

2 As noted by the trial court in its statement in lieu of opinion responding to Gracie Technologies’ motion under Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, it is not bound by the Superior Court’s unpublished opinion in Commonwealth v. One Jersey Hold ‘Em Machine Serial No. DDGPA0003 (Pa. Super., No. 309 EDA 2014, filed Dec. 23, 2014) (affirming trial court’s finding that a game was a game of skill), or two common pleas decisions cited in the briefs. Neither is this Court.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gracie Technologies, Inc., Fraternal Order : of Eagles Conemaugh Aerie No. 1811, : Appellants : : v. : No. 627 C.D. 2019 : Commonwealth of Pennsylvania :

ORDER

AND NOW, this 13th day of March, 2020, the Order of the Court of Common Pleas of Cambria County (Bernstein, J.) (C.C.P. Cambria, No. MD 162- 2017, filed April 26, 2019) in the above-referenced matter is AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior Judge