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“We wouldn’t allow anything illegal in our store,” Price asserted. “They are definitely different than slots.” The state has defined gambling to be occurring when there exists “consideration (payment), chance and reward.” Manufacturers of skill machines have marketed them under the banner of a 2-1 decision by the Superior Court in 2014 that upheld a trial court’s ruling that a Jersey Hold’em Machine and a Red, White & Blue Machine were predominately games of skill rather than chance, and that state troopers should not have confiscated the machines from American Legion Post 317 in Yardley, Bucks County. In that case, the Superior Court ruled that the lower court properly used a “predominate-factor test” that, for a game to constitute gambling, it must be a game where chance predominates rather than skill. The opinion that the two machines were predominately games of skill was based on six factors: • Results of high-win and payout percentages following six weeks of testing. • The machines only operate if the customer initiates stop buttons. • Neither machine was equipped with a random number generator. • The order of the symbols on the reels was fixed. • There existed a consistency in how far the reel would continue to travel once the stop button was pressed. • And there was no dispute that both machines were modified to remove the generator. The Court of Common Pleas of Bucks County heard testimony from Martin Caplan, owner of the machines; Nicola Farley, an electrical and computer science expert for the defense; and experts from the state. The Superior Court stated that county Judge Albert Cepparulo, acting as fact-finder, was free to give greater weight to the defense expert testimony of Farley, particularly to the fact that his employees, “following familiarization with the machines, were able to locate visual clues on the reels that would give them the ability to stop the machines in consistent locations.” The split decision drew the line between skill games and video gaming terminals (VGTs), which operate in a similar way to slot machines in a casino with each play random of the previous play, that are now permissible for use at eligible truck stops.
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