Background
POM of Pennsylvania, LLC manufactures and distributes “Pennsylvania Skill Amusement Devices”—electronic gaming terminals that accept payment and award cash prizes, marketed as legal skill-based alternatives to traditional slot machines. Beginning in 2018, POM sought a declaratory judgment in Commonwealth Court that its devices did not require licensure under the Pennsylvania Race Horse Development and Gaming Act (Gaming Act), 4 Pa.C.S. §§ 1101–1904, because the outcome of play is determined predominantly by player skill rather than chance. The Commonwealth Court agreed in a 2019 en banc decision, POM of Pennsylvania, LLC v. Department of Revenue, 221 A.3d 717 (Pa. Cmwlth. 2019), applying the “predominant factor” test drawn from prior Supreme Court precedent. Because the Department of Revenue did not obtain a final appealable order until January 2024, jurisdiction in the Supreme Court did not ripen until that time.
The Supreme Court addressed this appeal together with the companion case In re: Three Pennsylvania Skill Amusement Devices (No. 50 MAP 2024), which involved a parallel Commonwealth Court ruling that unregulated skill games do not violate Section 5513 of the Crimes Code. Both cases were argued November 20, 2025, and were resolved in a single opinion by Justice Wecht. The combined decision has immediate, Commonwealth-wide significance: skill game devices have proliferated into tens of thousands of Pennsylvania bars, convenience stores, pizza parlors, laundromats, and dedicated gaming establishments in reliance on the Commonwealth Court’s now-reversed holdings.
The Court’s Holding
A majority of the Pennsylvania Supreme Court reversed the Commonwealth Court and held that POM’s devices are “slot machines” subject to the Gaming Act, and that their unlicensed operation violates both the Gaming Act and Section 5513(a) of the Crimes Code. The Court stayed its order for 120 days; during that period, no law enforcement agency may take adverse action against owners or operators of skill game devices in reliance on the opinion.
Justice Wecht’s opinion turns on a 2017 legislative amendment that the Commonwealth Court had sidestepped. Act 42 of 2017 added two new terms to the Gaming Act’s definition of “slot machine”: “skill slot machine” (a machine in which skill, rather than chance, is the predominant factor affecting outcomes) and “hybrid slot machine” (a machine in which a combination of skill and chance affects outcomes). By expressly folding skill-based devices into the definition of “slot machine,” the General Assembly eliminated the predominant factor test as a basis for distinguishing regulated from unregulated machines. The Court held that a device need not be predominantly chance-driven to qualify as a slot machine under Pennsylvania law; a predominantly skill-driven device is, by definition, a “skill slot machine”—and therefore still a “slot machine” subject to the Gaming Act. POM’s device qualifies as a slot machine under the pre-2017 general definition as well, because it is a computerized machine that accepts consideration and may entitle players to receive cash or items of value.
The linchpin connecting the Gaming Act to the Crimes Code is Section 5513(e.1)(4), which exempts from Crimes Code liability any activity “lawfully conducted” under “4 Pa.C.S. (relating to amusements)”—i.e., the Gaming Act. Because POM operates without a Gaming Act license, it cannot invoke this exemption. Its unlicensed manufacture and distribution of slot machines therefore remains subject to Section 5513(a)’s prohibition on making, maintaining, and offering slot machines for sale or use. The opinion expressly frames this as a straightforward application of existing statutory text, not a policy judgment: “it is not this Court that declares ‘skill games’ to be unlawful. Rather, it is the General Assembly that did so nearly a decade ago.”
Key Takeaways
- Pennsylvania’s 2017 Act 42 amendments to the Gaming Act added “skill slot machine” and “hybrid slot machine” to the statutory definition of “slot machine.” This eliminated the “predominant factor” test as a classification mechanism: devices in which skill predominates are expressly defined as slot machines and remain subject to the Gaming Act.
- POM’s devices meet the Gaming Act’s general slot machine definition (computerized machine accepting consideration and potentially awarding cash) independent of Act 42.
- Section 5513(e.1)(4) of the Crimes Code exempts only activities “lawfully conducted” under the Gaming Act. Unlicensed operation cannot qualify; unlicensed skill game devices are subject to Section 5513(a)’s criminal prohibitions.
- The Supreme Court stayed its order for 120 days. During the stay, no adverse law enforcement action may be taken against skill game operators. The General Assembly retains authority to create a legislative pathway for skill games if it chooses.
- Justices Brobson and Mundy concurred in part and dissented in part, agreeing that POM’s devices are slot machines but arguing that the Gaming Act remedy requested by the Department—requiring POM to obtain a manufacturer’s license—is unavailable because such licenses are not issued to entities facilitating illegal gaming in unlicensed facilities.
Why It Matters
POM of Pennsylvania v. Department of Revenue is among the most consequential Pennsylvania Supreme Court decisions in years for the retail, hospitality, and gaming industries. The Commonwealth Court’s 2019 ruling had been the primary legal foundation for the expansion of skill game devices across Pennsylvania. With that foundation reversed, thousands of business owners who reasonably relied on the Commonwealth Court’s decisions now face a 120-day window to wind down operations or await legislative action. Regulatory counsel should monitor the Gaming Control Board and Department of Revenue for guidance during the stay period. Legislative activity is likely: the General Assembly may move to create a licensed framework for skill games, and the Court’s opinion explicitly acknowledges that determining whether such devices should be permitted is a legislative prerogative.
For gaming law and criminal defense practitioners, the decision clarifies that the Gaming Act and the Crimes Code operate as an integrated statutory scheme—not as separate bodies of law that could be navigated independently. The companion ruling in In re: Three Pennsylvania Skill Amusement Devices (No. 50 MAP 2024), issued the same day, addresses the Crimes Code’s seizure and forfeiture provisions and confirms that law enforcement will have clear authority to confiscate skill game devices from unlicensed locations once the stay expires.