
    Trombetta Return
    
      Thomas D. McBride, Attorney General, and Frank P. Lawley, Jr., Deputy Attorney General, for Commonwealth.
    
      Louis C. Glasso, Henry Beeson and Anthony Calvacante, for respondents.
    June 19, 1958.
   Bane, J.,

— This is a proceeding in rem instituted and prosecuted by the Attorney General of the Commonwealth for the forfeiture and destruction of 40 multiple coin pinball machines, of the bingo or “in-line” type, alleged to constitute gambling devices.

On June 20, 1957, in the execution of a series of search warrants, the State police, in cooperation with local officers, seized the machines at various places in and near the cities of Uniontown, Brownsville and Connellsville, in this county. Subsequently return was made and petition filed for orders to destroy them. A rule was then issued, answers filed and testimony taken before the writer of this opinion. Arguments have since been heard by the court en banc. We are all satisfied that all the machines, approximately half of which have been shown by credible testimony to have been used and employed by respondents for unlawful gambling, are gambling devices per se.

The Commonwealth presented two separate petitions one at no. 150, June sessions, 1957, Commonwealth Docket, listing those machines seized while in the process of being used in violation of the gaming laws of the Commonwealth, in that money was distributed as prizes, and the other at no. 151, June sessions, 1957, Commonwealth Docket, listing those machines where there was no evidence of actual pay-off in cash to any player, but of the same type and construction, all having been designed and manufactured by the Bally Manufacturing Company of Chicago, 111.

Another machine, known as “Gunsmoke” or “Hunter” type was included in the petition at no. 150, June sessions, 1957, Commonwealth Docket, and stipulated to be a gambling device per se.

While several variations or types of pinball machines were seized in the instant proceedings, it is not disputed that they are all fundamentally the same in character and operation, all possess the same basic features and are multiple coin in-line bingo type pinball machines. The difference between the machines is solely confined to the innumerable variations of the “added game features” and as the features are varied between machines, so are they given a variety of distinctive names. These variations are occasioned and made necessary because players soon tire of the same machine, and to maintain player interest they are transferred from establishment to establishment as the need arises.

The Bally multiple coin pinball machines are a far cry from the simplicity of the early machines described in Wigton’s Return, 151 Pa. Superior Ct. 337. They possess numerous new and ingenious electrical devices contrived to excite abnormally the gambling instinct, to entice the player to deposit more and more coins, to control and increase the odds against the player as the machine is functioning and to reduce to virtual zero any opportunity for skillful play. Each has what is called a “knockdown button” to cancel free games won, without playing them, thereby permitting their ready conversion to cash; meters to record the number of replays won, the total number of games paid for and the number of free plays cancelled by means of the “knockdown button.” The control mechanism within each such machine functions in such a manner that, as respects the “added game” or “extra ball” features, the result to the player who deposits coin after coin to obtain them, is dependent wholly on chance.

Since most of the testimony, as well as the photographic exhibits offered in evidence concern the Bally “Show Time” machine, we shall confine our specific discussion largely to it. The machine is mounted on four legs, which have on the base of each an adjustable caster or screw-plate, ostensibly designed to level the machine. It stands about three and one-half feet high and has an inclined horizontal playing field, under glass, dotted with numerous pegs, bumpers, rubber rings, spring bumpers, lights and 25 numbered holes, and one so called “return ball” hole at the extreme front end of the playing field. To the rear of this horizontal playing field rises a vertical score board or back-plate, also under glass, which visibly records the progress of the game as it is played, as well as the ultimate result. Both boards are attractively and artistically decorated. The vertical score board displays a large card or square, which contains a series of numbers, 25 in all, corresponding to the numbered holes on the horizontal playing field. These numbers are joined or connected by vertical, horizontal or diagonal interlocking red, green and yellow lines. The large square is further subdivided into four small squares, each containing four numbers, called “magic squares”. At the bottom of the large square are four subdivided horizontal numbers called the “magic line”. The four magic squares are identified by the letters, “A”, “B”, “C” and “D”, and the magic line by the letter “E”. On the front end of the frame surrounding the horizontal playing field and nearest the player are five buttons, each correspondingly lettered “A”, “B”, “C”, “D” and “E”. If a player should be successful in illuminating any one or more of the magic squares, or the magic line, the pressing of the appropriate lettered button permits the player to rotate the four numbers within the lighted square or line to a more advantageous position, thereby enhancing the possibility of his getting three, four or five numbers “inline”. These in-line numbers must be consecutive and further joined by the yellow, red or green lines, either vertically, diagonally or horizontally, and if so, a win is scored, much as in the game of bingo.

Surrounding this numbered square on the vertical score board are the so-called “extra” game features, represented by appropriate figures. The object of these added features is to encourage the player to try for the opportunity of increasing his chances to win free games. These are scored by a “free game” recording meter visible to the player in the upper left corner of the vertical score board. Thus the player knows at any given time the total number of free games to his credit. Each such free game is equivalent in value to the monetary unit required to operate the machine and may be used, by pushing a button, for the same purposes which would otherwise be accomplished by the insertion of coins. Each time the player pushes this button, the free games are reduced by one and the meter records this fact. Thereafter, he may continue to use his available free games until they are exhausted, in which event the meter will have returned to zero. Should he desire to continue further play, he can then only activate the machine by the insertion of a coin in a slot located on the front or player’s end of the machine. Each of these multi-coin pinball machines are so designed that they can be altered to take nickels, dimes or even quarters, by merely changing the chute device beneath the coin slot.

Immediately below the “free game meter” is a green rectangular square upon which is lettered, “Corners Score Green 5-In-Line”. If this feature is illuminated on the vertical score board and the player should be successful in 'depositing four balls in each of the four corner numbers, he would score the same number of free games for these four balls as if he had in fact five such balls “in-line”. Here again we point out the significance of the added features hereinbefore described as the “magic squares” and the “magic line”. The two corners located on the right side of the machine’s numbered square are fixed numbers, and the player would have to deposit two balls in each of said corners. However, it is to be noted that the upper left corner is located in magic square “A” and the lower left corner is located in magic line “B”. If either or both of these latter features are illuminated and the player has dropped a ball into one of the numbers contained therein, and not necessarily in a corner hole, he may nevertheless rotate that number to the corner and score.

Beneath this green square is a yellow square, upon which is lettered “Ball shot in Bally Hole lights 1st Extra Ball.” This added feature has reference to hall hole number 16, designated upon the horizontal playing field as the “Bally Hole”. If this feature is illuminated on the vertical score board, and the player successfully deposits a ball in hole number 16, he automatically receives the first extra ball with which to continue play.

Below this latter feature are a series of arrows or darts, pointing from left to right, and the large letters “A”, “B”, “C”, “D” and “E”. This feature has reference to the magic squares and magic lines, above described.

Proceeding to the right side of the numbered square are a series of arrows pointing from the bottom to the top of the vertical score board, and a series of colored squares, variously lettered. The first of these is the square bearing the inscription “Press buttons before shooting 4th Ball”. Above this square are two squares, each bearing the lettering “Rollover Lit” with a large yellow star on the lower square and a large red star on the upper. These stars have reference to two similar colored stars, containing buttons, located on the horizontal playing field. Above these latter two squares are two further squares, bearing the designations “Press buttons after shooting 5th Ball”. All the features mentioned and designated as being to the right of the numbered square, have reference to player’s ability to rotate the numbers contained in the magic squares and magic line, if one, part, or all are illuminated. In the ordinary course of play, a decision must be made by a player as to where the numbers will remain, before he shoots his third ball. If none of the features to the right are illuminated, the rotated numbers will lock immediately after shooting the third ball, and the player may not thereafter rotate them to a more advantageous position. If the first feature to the right is illuminated, this will unlock the rotating feature, and the player may then observe the hole into which his third ball is deposited, and before shooting his fourth ball, may again rotate the numbers. The extra features which contain the yellow and red stars, called “rollovers”, permit the player, if illuminated, to roll his descending ball, on the horizontal playing field, over the buttons contained in said stars. If he accomplishes this feat, the rotating feature is again unlocked and he may make his selection before or after shooting his fifth ball. Because of the limited numbers available below the point of rollover, and the difficulty of the shot, a player may decide to abandon this effort and deposit additional coins to acquire these features. Should he be successful in lighting either of these squares, he accomplishes the same result automatically that he would have accomplished by performing the rollover feat.

We are informed, and it is not disputed, that this latest type Bally “Show Time” machine, contains a playing feature not present in other machines. This feature has reference to the player’s opportunity to score free games, where he can, by rotating the numbers, get three or more balls “in-line” on two of the different interlocking color lines. In this situation he would score on the initial color line, and then by rotating the numbers to a different color line, score thereon also. The number of free games scored in each instance would be dependent upon the number of balls “in-line” and the odds illuminated for that color. For a player to take advantage of this scoring possibility, he must have insured himself against the possibility of not being able to rotate the numbers after shooting his third ball.

Immediately below the above enumerated extra features and extending across the entire face of the vertical score board, are the odds features of the game. These are represented on eight vertical columns; each such column being divided into three separate units of three numbers each. Across the vertical board the top units are colored green, the center units yellow and the bottom units red. In this first column to the left appear the first three units in which the numbers 4-16-75 are evident. The four represents the number of free games that can be won for “3 balls in-line”, the 16 for “4 balls in-line” and the 75 for “5 balls in-line”.

The three colors representing the three units correspond to the interlocking color lines on the large numbered square. As these columns and units proceed from left to right, they become increasingly larger, until in the eighth column, the “odds” have increased to the numbers 192-480-600. Upon the insertion of the first coin, the first column of “odds” is lighted in all three colors and is available to the player. Should he then decide to increase these odds, thus giving him an opportunity to win a greater number of free games, he may, by the insertion of additional coins, attempt to achieve this result. The progression of these odds from left to right on the vertical board is erratic, not column by column, but unit by unit. In other words, as coins are inserted, the yellow unit in the first column may advance to the yellow unit in the second column, leaving the green and red units still lighted in the first column. Still further coins may advance these units in this erratic fashion from column to column, until the highest odds are ultimately reached in the eighth column. When a player ceases to insert coins, he may find his green “odds” in the fourth column, the yellow “odds” in the second column and the red “odds” in the fifth column. When the player shoots his first ball, this act locks all the extra features obtained at that time, including the “odds”, and he would then win, on the basis of depositing three, four or five balls in-line, on one of the interlocking color lines of the numbered square. If this line were red, he would receive the red odds, if yellow, the yellow odds and if green, the green odds.

The last feature contained on the vertical score board, located at the bottom thereof and extending from left to right, is the extra ball feature. This is shown by the words “(Extra Balls) — (1st) (Extra) (Ball) (2nd) (Extra) (Ball) (3rd) (Extra) (Ball) ”. After shooting the five balls initially acquired by the insertion of the first coin, a player may find himself in such an advantageous position to score, that with the further aid of additional balls, he might accomplish this fact. He may then resort to this feature to acquire extra balls. Keeping in mind that all the extra features are locked in status quo after shooting the first ball, the player must press a yellow button on the front of a hinged doorway located beneath the playing field and nearest the player. When he presses this button, he may then insert additional coins, which activates this extra ball feature. It may be necessary to insert one or an unknown quantity of coins before the first extra ball is obtained. After shooting this ball, he may proceed in the same fashion to procure the second or third extra ball. When the player has acquired these three extra balls, no more are available, and the game is completed.

There is at the front of the player’s end of the machine, a rectangular hinged doorway. This is shown in a closed position in exhibit no. 3 and in an open position in exhibit no. 7. Located to the left and just inside the horizontal cabinet is located a “tilt” device like a plumb-bob. It consists of a cone-shaped piece of carbon or graphite, suspended by wire inside a ring. This device can easily be adjusted by raising or lowering the graphite cone. The higher the cone is set, the wider the distance between it and the ring, and conversely, the lower it is set the narrower the distance; In addition to this major tilt device, there are several others located on this hinged doorway, the sides, bottom and rear of the machine. These latter tilts consist of spring-leaves with a weight and can be adjusted to varying degrees of sensitivity. None of these devices are visible to the player, and are designed to render the machine inoperative when vibrated or jolted too hard. When this occurs, the game is voided and the player must start anew.

Also visible in exhibit no. 7 are two recording meters. The one on the left has been identified as the “total play meter”. It does not appear to be disputed that this meter records the total number of coins inserted in the machine, plus all free games used by pressing the replay button. The meter to the right has been identified as the “total free game” meter. It is contended by respondents that this meter is so wired when it leaves the factory that it records the total of all free games won on the machine. Thus it is argued that the possessor of the machine may quickly subtract the totals recorded by these meters and thus ascertain whether the machine is showing a profit or loss based on play. Under the evidence before us, it does not appear that this contention is true. In each instance, the meter to the right does not record the total of all free games won, but only those free games that are “racked off” or “knocked down”. Let us assume, for example, that each of the three meters described are at zero. A player inserts one coin in the machine and receives five balls with which to play. The total play-meter in the lower left front would record this insertion and advance to one. The other two meters would remain at zero. Assuming further, that the player shoots these five balls and successfully wins 20 free games; under respondent’s contention, the total play-meter in the lower left would remain at one, the total free game meter in the lower right would advance to 20 and the free game replay meter at the upper left of the vertical score board would also show 20. However, the factual evidence shows that when the events above related occur, the meter in the lower right remains at zero. Thereafter, if the player should use five of his 20 free games to play, by pressing the replay button, then decides to stop, thus leaving 15 games unused, the replay meter on the upper left would show these 15 games remaining, since this meter drops back one game each time the replay button is pressed. The total play meter in the lower left would show the figure six, representing the original coin insertion and the five replays used. The total free game meter, in the lower right, would still be at zero. On the bottom of the machine, beneath the playing field, and shown in exhibit no. 8, is located a cancellation button or toggle-switch. It is asserted by respondents that this cancellation button is placed on the machine for the convenience of the possessor to remove the free games won by one player so that they would not be available for another. The “racking off” or “knocking down” of free games is accomplished by pressing this button. In our instant situation, when this is done, the total replay meter in the upper left would drop automatically back to zero, the total play meter in the lower left front would remain at six and the total free game meter in the lower right would advance from zero to 15. It is therefore argued by petitioners that the sole purpose of this meter, wired as it is, is to record only the total of free games “racked off” or “knocked down”, thus keeping a record of only those games on which the possessor had “paid off”. It appears from the evidence, and it is not seriously disputed, that the change in wiring from that in which the machine is shipped from the factory, as respects this meter, is easily accomplished by the simple transfer of wires already contained in the machine.

In the cabinets beneath the horizontal playing field and particularly behind the vertical score board, as evidenced in exhibits 15, 16, 17, 18 and 19 are housed the mechanical and electrical units which cause this intricate and ingenious machine to function. To explain the purpose of these units and the logic of the machine, petitioners called as their witness, Mr. Harold L. Ergott, Jr., a doctor of science and instructor in electronics at Pennsylvania State University. Respondents similarly called Mr. Robert H. Breither, an electrical engineer, employed by the Bally Manufacturing Company of Chicago, 111., and designer of many of these machines. By reason of the technical nature of their testimony, it must be conceded that only an expert in this specialized field could possibly understand and appreciate the involved and complicated details of their testimony respecting the wiring, functions and operations of this machine. However, certain features are clearly understandable, even to the layman, and do not appear to be disputed. These features alone are sufficient for our purposes.

It is apparent from the testimony of these witnesses that basically the machine operates on a number of parallel circuits leading to each of the so called “added features” of the game. The greater the number of parallel paths or continuity of electrical circuits, the greater the advantage which accrues to the player to secure these added features. Conversely, as these parallel electrical circuits are decreased, the greater becomes the player’s difficulty in securing them.

Clearly evident in exhibit no. 19, and shown in the center thereof, are three sets of “adjustment plugs” or “connecting plugs”, labelled “Extra Balls”, “Corners” and “Reflex”. It is conceded that the game difficulty may be manually changed simply by an adjustment of these plugs. The set of plugs labelled “Extra Balls” controls the number of possible parallel circuits that could be used to obtain extra balls. By the simple process of changing these plugs, the parallel circuits are increased or decreased, dependent upon the setting. Thus, if this feature is being too easily obtained by the player, the operator of the machine need only make the proper adjustment, thereby increasing the player’s difficulty. The set of plugs labelled “Corners” determines the number of parallel paths that could be used to get the corner advantages, four balls in corners give the same number of games as five balls in-line. The third set of plugs labelled “Reflex” are contained in the reflex circuits, and by increasing or decreasing the settings, the number of parallel paths that could be used to supply voltage through the reflex circuit is controlled. These settings, of course, are never visible to the player.

The second unit we mention is the “reflex” unit, a type of “memory system” built into the machine. This unit is a bi-directional type of device which can be rotated clockwise or counter-clockwise. As more and more coins are inserted in the machine, this unit may operate in a counter-clockwise position, thus opening a greater number of parallel paths to various features, thereby increasing the player’s chances of obtaining them. However, as games are won, this unit will operate in the clockwise direction, thus decreasing the parallel circuits and reducing the player’s opportunity to obtain them. The functional purpose of this so called electrical “brain”, which receives its electrical impulses throughout all stages of the play, is to control the player’s possible opportunities to win a large number of free games. This function is not visible or apparent to the player and so far as he is concerned he is not aware of what is happening.

The last unit we mention with particularity is known as the “Control” or “Mixer Unit”, with associate switches. As the name implies, this unit controls the timing operations of the machine. Contained within this unit are rotating cams or discs, eccentric in construction, which are located on the same rotating shaft as the spotting disc control. When coins are inserted, or the replay button is pushed, it is at that instant that the reactions occur within the machine, and it is at that moment that the angular rotation and displacement of the mixer discs, together with the spotting disc, determine what reaction, if any, will occur. This means simply that the machine is not a repeating type of device, nor does it have cyclic pattern in nature. Every game played will, therefore, of necessity, be different, for no player can ever reproduce the same displacement within the “Mixer Unit” as he plays each succeeding game. The functional purpose of this unit, then, is to prevent a player, who may, after continued play, attempt to ascertain the number of coins required to obtain certain added features and the frequency of their occurance.

Many other switches, relays and units are contained within these cabinets which we shall not discuss. With respect to the three we have mentioned, namely, the “adjustment plugs”, the “reflex unit” and the “control unit”, it is readily apparent that they, in their functional operation, create circumstances over which the player has not the remotest control. Whether the player will receive further odds, or game features, or extra balls, upon the insertion of one or an unknown quantity of coins, is dependent upon the purest chance. This fact is best illustrated by the questions and answers directed to respondent’s expert witness, Mr. Breither:

“Q. In all the Bally Bingo type machines, upon the insertion of additional coins, whether the various spotting discs and mixing units are stopped at any given point, giving the player additional lights or features, depends on chance, does it not?
“A. I would say so, yes.
“Q. And whether the features will light or increase in the odds or reduce in the odds or will be visible to the player, operates purely on chance, does it not?
“A. That feature in pinball machine games does have that condition so far as the game features are concerned on the backboard.
“Q. It does operate purely by chance, is that correct?
“A. That is correct . . .
“Q. So in any given game the scoring against— strike that out, please. So in any given game it would be possible for me to walk into an establishment having one of these pinball machines and before I played one (1) game or finished it, I could insert as much as a thousand ($1,000.00) dollars, if the odds did not get too tough, it that correct?
“A. I would rather it not be you, but whoever did so would be nuts.
“Q. But it could be done?
“A. It is possible . . .

In his testimony Mr. Ergott, Jr., also said in response to questions directed to him:

“Q. Do you always get an additional feature after the first nickel is placed—
“A. No you do not. This is entirely a random mechanism and while this wheel is rotating (indicating) and if it happens by chance to stop on the proper spotting disc, or the mixers stop on the proper position and the other circuits are set up appropriately, then you could get an increase in odds.
“Q. But the mere insertion of a coin doesn’t guarantee that you will receive or obtain such extra features?
“A. No it does not . . .”

When a player approaches one of these machines to play, he finds, at the front or player’s end of the machine, and located on the right thereof, a rubber topped steel plunger mounted on a spring with a knob on the end, so that by pulling it back and releasing it, it acts as a catapult. Below the plunger is a ball guide-plate, scored with several lines by which a player can measure how far out he pulls the plunger. Respondent’s witnesses say the design of the knob is meant to give a player the maximum amount of sensitivity in gauging his shot. Upon depositing the first appropriate coin, whether it be a nickel or a dime, five stainless steel, nonmagnetic balls are released, the first of which immediately appears in a channel in front of the plunger. This first coin insertion also activates the machine and generally lights the lowest odds on the machine which show the number of free games that can be won for depositing three, four or five balls in-line, in the appropriate numbered holes. It is at this moment, and before shooting this first ball, that the player must decide whether or not he wishes to gain any of the foregoing “extra” or “added features”, or to increase the odds of winning. When the player releases the plunger, the ball is catapulted through a channel running along the right side of the horizontal playing field, striking a switch just as it comes out of the channel onto the playing field. The impact of the ball against the switch automatically locks the game in status quo, that is, whatever features have been lighted will remain the same from that moment until the game is completed. After shooting of the first ball, the insertion of an additional coin will void the game, except in the case of pressing the yellow “extra ball” button and the insertion of additional coins for this purpose only. This feature is incorporated in the machine to prevent a player from first shooting several balls, finding himself in a particularly advantageous position, then deciding to “go” for the added features, thus being able to take advantage of the machine from his already known favorable position. If he decides not to gain additional features or odds, he simply plays his five balls, with the right to deposit additional coins, after pressing the yellow extra ball button, to obtain one, two or three extra balls. Should he seek these features, he merely deposits additional coins in the coin slot, which by reason of the random operating nature of the machine, may or may not give them to him. This he may continue to do until he has achieved the feature sought, or until he tires of dropping in coins. That he can, and often does, deposit startling amounts to gain these added features, is not disputed. When the ball comes out of the channel onto the playing field, at a point farthest from the player, it immediately rolls by force of gravity down the field, being deflected erratically and unpredictably in its downward course by the various impediments already described, until it either comes to rest in one of the numbered holes or drops into the return ball hole. If the ball drops into a numbered hole, an electrical contact is made, causing the corresponding number to light up on the vertical score board. Each ball is thereafter “shot” by the player in an effort to deposit balls in appropriate holes, so that they will line up on the vertical score board, vertically, horizontally or diagonally, three, four or five “in-line.” Only those features, if any, that have been lighted by the initial insertion of coins are available to the player during the course of play. After the player has shot his fifth ball, he may then decide to take advantage of the extra ball feature, which is still available to him, and operates in the manner above described.

Respondents placed great emphasis upon the element of player skill. Request was made and permission granted to conduct a demonstration before us, in which two purported “experts” in the art of playing pinball machines were called by respondents. It was, and is, strongly asserted, that by controlling the force of the catapult, the ball can be directed to one or the other side of the playing field, and that as the ball meanders down the playing field it can be controlled or directed by “gunching,” “hulaing,” shoving, pounding or vibrating the machine. The so-called first expert failed to measure up to the abilities attributed to him. The second, while more successful, did not convince us that the element of player skill was a real and substantive factor in playing pinball machines. As we view the evidence, the element of player skill is reduced to almost a nonexistent minimum. The raising or lowering of the casters upon the legs of the machine can easily control the force of gravity or rate of speed with which the ball descends the playing field. The plunger is admittedly not a precision instrument. The various impedimenta upon and around the playing field is designed to prevent a player from depositing balls in the desired holes, and while “gunching” or “hulaing” a machine may ultimately procure a desired result, this result is achieved largely by chance, and not skill. While it is argued that a machine “set too tight” soon loses player interest, it is also admitted that the control features are designed for the purpose of adjusting the machine to meet the danger of so-called expert players, and that they are most often so adjusted.

If we were to accept respondent’s argument that “expert” players do, and can control, the downward course of the ball, so as to cause it to follow a desired rather than a random course, then we must shut our eyes to the obvious fact that only a small percentage of players ever reach this degree of asserted skill. The vast majority of the playing public must necessarily play the machine in a manner where the result, for them, is dictated solely by chance.

While it is asserted that the tilt devices contained within the machines are designed to prevent vandalism, it is also admitted that they can be adjusted to such a degree of sensitivity that even an “expert” can not “gunch” or “hulai” a machine. As we view the evidence, it is apparent that the designer of these machines did everything possible to eliminate the element of player skill, even for the so-called expert.

In the case of In re Forfeiture of Gambling Devices, 95 Pitts. L. J. 233 (1947), the court held that the console slot machine, which was electrically operated, was a gambling device per se. The machines there discussed were similar to the “Hunter” type seized in these proceedings. No effort was made to preserve the sanctity of this latter machine, it being readily conceded that even though free games were the end result, it was nevertheless designed and intended to be used for gambling purposes only. A player of these machines simply inserted a coin, pressed a button, watched the reels spin and awaited the result. The element of pure chance was the soul of this device. In speaking of these machines Judge Ellenbogen refers to the cancellation button and recording meter:

“This contention overlooks the fact that these machines are equipped with a cancellation push button and a recording meter which counts and totals free games won by the player and cancelled by the push button. It is the presence of this cancellation button and recording meter which render these machines illegal because they are installed solely for the purpose of gambling.”

The machines in the instant proceedings all possess this knockdown button, as well as the meter, which totals only those free games “racked off.”

In Urban’s Appeal, 148 Pa. Superior Ct. 101 (1942), the Superior Court said of the “knockdown” button and meter:

“There is upon the record evidence . . . that each [machine] was equipped with mechanism to cancel the ‘free games’ and record the games thus eliminated; that the main purpose, indicated by the evidence, of the installation of such mechanism was that the machines could be used and employed for the purpose of gambling.”

From all the testimony before us, we can only conclude that the presence of this cancellation button, together with the recording meter, can have no conceivable purpose other than to record the number of free games cancelled and paid off by the proprietor of the place where the machine is located. The only function which this meter could serve so far as accounting is concerned is to aid the collector of the moneys in the machine to determine and make accurate reimbursement to such proprietor for the free games redeemed. As to the assertion by respondents that the meters contained within the machines are not so wired when shipped from the factory, we can only regard with great significance the fact that extra wires and extra contacts are built into the machine by the manufacturer, which facilitate an easy alteration from the alleged use of these meters to the real purpose intended, viz., gambling. Lastly, it has been stated that it requires at least three minutes to play five balls in an average game. Should a player be fortunate enough to win even half of the 600 possible free games afforded by the odds on this machine, it would require him nine hours to play them off as individual games. When closing time arrives at the establishment, or the player is required to stop, some disposition must be made of the remaining unused games. Obviously, no player would allow free games won to be eliminated by the use of this “knockdown” button without being compensated with something of value. Whatever be the form of compensation, it is condemned by the anti-gambling statutes. The presence of the knockdown button, together with the meter, presumes the use of these machines for gambling purposes.

We have been, perhaps, over meticulous in our explanation of the manner of play, the functions of units and the so called “added features” of these multicoin pinball machines. Yet without a complete understanding of their logic and operation, it is impossible to appreciate the distinctions which set these machines apart from those which were before the court in Wig-ton’s Return, 151 Pa. Superior Ct. 337 (1943). In this latter case, the proceeding was for the destruction of seven single coin pinball machines. There was no evidence of “pay offs” in money or merchandise, and they were not equipped with a “knockdown” button for cancelling free games, nor a recording meter although it did appear that free games could be can-celled by a repeated operation of the coin plunger. The court in Wigton’s Return, quoting from Urban’s Appeal, stated, in part, that if the only thing which could “ ‘be played for, or staked, or betted upon’ ” was the privilege of making a score above a predetermined number, resulting in free games, which permitted the player to operate the machine without depositing an additional coin, the question would be debatable whether a valuable thing, within the meaning of our present penal code was being played for. The court framed a twofold issue: “(1) Does the fact that the player may win the right to play ‘free games’ by making a high score or (2) the fact that it is possible to cancel at least some of the ‘free games’ without playing them, justify the conclusion that the machines are used for unlawful gaming?” With respect to the first issue the court decided that the right to play a free game was neither “money”, “nor other property of value” nor a “valuable thing”, under our statutes. There being nothing to the contrary in the record, the court assumed that the machines were played exclusively for “recreation” or “amusement only,” and therefore, since the statute required that the right of replay not merely have value to the player, but be a thing of value, free games did not fall within the purview of the statute. With respect to the latter portion of the issue the court held that the “free games” feature did not warrant destruction of the machines in the absence of proof of actual use for unlawful gaming, reasoning that the emphasis of the statute was on actual use and employment for unlawful gaming and not on possible use for unlawful gaming.

It might appear, at first glance, that Wigton’s Return controls the instant case, since it must be conceded that even on the multi-coin pinball machine, a player may receive five balls, upon the insertion of a single coin, which he may elect to play, and if he can successfully deposit three or more balls in line in appropriate holes, he would score free games. If this latter described situation were all that was available to the player, and nothing to the contrary appeared in the record of the proceedings, we would concede the soundness of respondent’s arguments. However, numerous statements are made in Wigton’s Return, which, when applied to multiple coin machines, indicate they are within “the mischief to be remedied” and the “object to be attained” by the statutory prohibitions against gambling devices. The machines in the instant proceedings do have the button or mechanical device for cancelling free games, as well as the recording meter, which were present in the machines in Urban’s Appeal, but not present on those before the court in Wigton’s Return. We do have evidence before us which warrants the conclusion that the element of player skill is not of substantive quality. The machines before the court in Wigton’s Return were all single coin, that is, only one coin could be inserted for each game played, while those before us are all multiple, coin machines. The diversity of features above enumerated clearly show the distinction between the type of pinball machines before us now and those before the court in Wigton’s Return. These distinctions alone are sufficient to warrant the conclusion that these machines are manufactured, transported, sold, installed, set up, maintained and played for gambling purposes. By their very nature, with all their electrical and mechanical features, they constitute gambling devices per se.

We do not, however, ground our decision on the foregoing reasons alone. In Wigton’s Return the court most significantly said on page 344:

“This is not to say that proof that a device or machine operates entirely by chance is without significance. Since normally people do not play games of pure chance for recreation or amusement without betting on the outcome such proof would be some evidence of their use for unlawful gaming.”

It is readily apparent that the features present in multi-coin pinball machines are designed and intended to lure, attract, entice and encourage an unwary public to wager their money on the chance of beating the machine. If amusement, as asserted by respondents, is all that is sought, the insertion of a single coin should give the player all the amusement or recreation the machine affords. This skillfully constructed and artistically decorated machine is obviously not designed for such use. While it retains the feature of five balls upon the insertion of one coin, which when played produces only the end result of possible free games, this machine performs two additional operational functions between the beginning and end of play, which clearly and unequivocally sets it apart from those which were before the court in Wigton’s Return. Our reference is specifically to the “added and extra ball” features of the multi-coin pinball machine.

After inserting the first coin, and before commencing his play, a player knows that if he has any hope of taking advantage of the opportunities of play afforded by these added or extra features, he must do so before shooting his first ball. To procure these enticing features, such as the green square, bally hole, roll-over, magic square and magic lines, the opportunity to vary the latter before and after shooting the fourth ball, or before or after shooting the fifth ball, increase the ultimate odds, all of which will enhance and afford him substantial advantages, as each successive ball is shot in the progress of the game, he must insert coin after coin in an endeavor to obtain them. He must likewise, after shooting his fifth ball, press the necessary button and insert coin after coin, should be seek to take advantage of the extra ball feature. Whether or not any of these features enumerated will be given to the player upon the insertion of extra coins, depends solely upon chance, and it is admitted that the player obtains no amusement or exercises any skill in inserting the coins. Were there no other circumstances before us, save these latter two features, they alone would be sufficient to warrant the conclusion that the multiple coin pinball machine, by its very nature, is fitted solely for the purpose of gambling. It is perfectly obvious, so far as these two features are concerned, that they are electric slot-machines, cleverly integrated into the functions of the machine, with all the ingenuity that modern technology can devise. As such, they invite the same condemnation that has been accorded the so-called “one armed bandits” and “electric” real type slot-machines. It is equally obvious that the player who inserts coin after coin, in substantial amounts, is gambling on beating the machine for more free games than coins deposited, and that he expects to cash-in the free games to obtain a cash profit. Herein lies the element of gambling, for what man, seeking mere amusement, would insert coin after coin, to obtain these features, unless it be true that he is gambling, staking, even betting on the chance of winning something more valuable than a free game, a chance to win something for nothing, a chance to win more than the sum ventured?

The very nature of the multiple coin pinball machine, incorporating as it does these two slot-machine features, establishes clearly that it is just as reprehensible as the one-armed bandit or the so-called electric slot-machine, both of which have been “outlawed.” We can see no distinction between the operational functions of these latter two machines and that of the multiple coin pinball machine. We may only conclude from all the evidence before us that it is, in fact, a gambling device, per se.

For those who argue that pinball machines are games of skill, intended for amusement only, we need only briefly quote from recorded authorities. The Citizens’ Crime Committee of Massachusetts reports that the pinball machines of “smallish” Fitchburg are good for a take of about $1,000,000 a year. Two million dollars annually go into the machines of Kansas City; Cincinnati’s 1,400 machines net $7,000,000 per year; and from Baltimore we have the report that pinballs are a multimillion dollar business, so vast that it is impossible to compute the millions of dollars spent in playing them. In Erie, the racket in pinballs and other gambling devices grossed $20,000,000 a year until broken up. The Chicago Crime Commission states that Americans, of all ages, toss $3,000,000,000 annually into these machines. From our own community there is credible testimony that one player contributed to these machines, in the space of two years, the sum of $3,000. These figures disclose that pinball machines are far from being a harmless little game, costing only a nickel or a dime to play. That they are a multimillion dollar business within many of our states cannot be disputed. The fact that they are a source of vast revenues would not alone condemn them, but when these funds are extracted from, the pockets of a gullible public, by a skillfully devised machine, which the National Association of Citizens’ Crime Commissions calls a “slot-machine in disguise,” it merits judicial condemnation. It is scarcely necessary for us to give lip-service to the considerations which make gambling a menace to public welfare. Although it is sanctioned in some form in many of our States the public policy of this Commonwealth is opposed to it: Plotnick v. Pennsylvania Public Utility Commission, 143 Pa. Superior Ct. 550; Wigton’s Return, 151 Pa. Superior Ct. 337.

Accordingly the court finds that the devices and machines listed in the petitions filed at nos. 150 and 151, June sessions, 1957, Commonwealth Docket, are essentially and inherently gambling devices, used and intended to be used for the purpose of unlawful gambling, and therefore subject to forfeiture and destruction.

Concurring Opinion

Dumbauld, J.,

June 19, 1958. — The pinball machines here involved were seized under legislation authorizing seizure of “any device or machine of any kind, character or description whatsoever, used and employed for the purposes of unlawful gambling.” Forfeiture is to be decreed by the court only “if satisfied that such device or machine was employed and used for the purpose of unlawful gaming as aforesaid”: Criminal Code of March 31, 1860, P. L. 382, 18 PS §1445. The important question for decision in the case at bar is whether the seizure of machines of the type here involved is valid, upon the assumption that there is no evidence that the machines in fact were actually used or employed for gambling.

At first blush one might think that in the absence of such evidence of actual use for gambling purposes a seizure could not properly be made under this legislation. However, a different interpretation of this language has been established by previous decisions of this court and of appellate courts. These precedents authoritatively interpret this legislation as not requiring such proof. See In re Destruction of Twenty-five Slot Machines, 3 Fayette 169, 171 (1940); Urban’s Appeal, 148 Pa. Superior Ct. 101, 112-13 (1942); Mills Novelty Company’s Appeal, 316 Pa. 449, 461 (1934).

Those decisions hold that certain types of machines are regarded as gambling devices per se, and may be seized and destroyed without proof of actual use for gambling.

Whether or not a particular machine is to be classified as being such a gambling device per se depends upon whether it is so constructed that it contains certain features or gadgets which have no useful function and serve no normal or natural purpose other than in connection with gambling.

The machines involved in the case at bar obviously do possess such features or gadgets. For example, they contain certain meters and computing devices the only natural and ordinary function of which is to enable the operator of the machine to calculate the amount of money he owes the owner of the machine, after deducting appropriate credits for payoffs to customers successfully playing the machine.

Accordingly the seizure is valid under the judicial precedents by which this Court is bound. These authorities are fully discussed, and the construction of these machines fully described, in the thorough and able opinion filed by Judge Bane.  