          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).


                                              2
               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.


                                                3
       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
