In a ruling sure to fuel the illusions of some inveterate Pennsylvania gamblers, a sharply divided state appeals court has ruled that gambling machines can be games of skill, not chance.
Well, at least the two poker machines played for a time at American Legion Knowles-Doyle Post 317 in Yardley, Bucks County.
In a 2-1 decision filed Dec. 23, Superior Court ruled that on Oct. 15, 2010, state troopers wrongly seized the poker machines - a Jersey Hold 'Em and a Red, White & Blue.
The troopers, backed by the District Attorney's office, seized the machines as evidence of illegal gambling.
Not so, insisted Martin Caplan, of Morrisville, owner of Double D Gaming, which leased the machines to the post and split the proceeds.
Though the two machines entered the gaming world in New Jersey casinos, Caplan argued that his modifications gave players who honed skills of observation, attention, and reflexes an edge that slots players in licensed casinos did not.
Among the major tweaks, Caplan testified in a 2013 hearing, was removal of the machines' "random number generator" and addition of a button on each machine's spinning reels that lets a player stop it at will.
Bucks County Court Judge Albert J. Cepparulo sided with Caplan, ruling in December 2013 that "the machines, following this significant modification, were no longer endowed with the randomness of their antecedent electronic poker and/or Texas Hold 'Em poker games."
In affirming Cepparulo, the Superior Court majority cited several days of testimony by "dueling experts" and precedent: the state's 31-year-old "predominate-factor test."
"For a game to constitute gambling, it must be a game where chance predominates rather than skill," wrote Judge Paula Francisco Ott in the majority opinion.
In his dissent, Judge Eugene B. Strassburger 3d cited the plain language of the illegal gambling law: "a machine is a gambling device per se, if it can be used for no purpose other than gambling."
Even as modified by Caplan, wrote Strassburger, "the skill required to prevail in the games at issue was nearly impossible for the average or casual player to attain."
He added: "With respect to either one of the machines at issue, the action of pressing a button is not a skill within the meaning of the statute, and chance predominates the outcome."
Officials in the Bucks County District Attorney's Office could not be reached about a possible appeal to the state Supreme Court.