Court Of Appeals Rules Against POM In PA Skill Games Misconduct Case

Written By Corey Sharp on November 16, 2023
Image of a judge's gavel for a story about the Pennsylvania skill games court case involving Pace-O-Matic.

Pace-O-Matic (POM), a Georgia-based skill games manufacturer, originally had access to view Eckert, Seamans, Cherin & Mellott, LLC’s (Eckert) privileged logs for potential legal misconduct. However, the United States Court of Appeals for the Third Circuit reversed the ruling. Eckert does not have to turn over any information to POM.

POM has been operating skill games in a gray area for years in the Keystone State. A decision on the legality of skill games, which rests in the Commonwealth Court, is coming soon.

POM does not have access to Eckert’s files for potential legal misconduct probe

POM has been adamant in recent months that Eckert has been involved in a conflict of interest. The lawsuit claims that Eckert represented POM and Parx Casino, competitors against each other, at the same time.

Jennifer P. Wilson, United States District Judge Middle District of Pennsylvania, ruled that POM could access Eckert’s files to determine any potential legal misconduct. As POM regarded that decision as a win, the tides have now turned.

The United States Court of Appeals for the Third Circuit reversed the decision made by Wilson in June. The Third Circuit ruled:

“Because the District Court erred in implementing the standard for application of judicial estoppel under our caselaw, we will vacate the order and remand.”

In other words, the ruling has been overturned. The District Court ruled in favor of POM in June because Eckert had acted in “bad faith” by withholding emails and allegedly manipulating litigation. However, the Third Circuit saw it differently. The court order said:

“The District Court reasoned that judicial estoppel was appropriate because the appellants had presented fundamentally different positions in bad faith to obstruct discovery and no lesser sanction would address the resulting harm. We conclude that the requirements for applying judicial estoppel have not been met.”

The Third Circuit also said that the District Court “abused its discretion.”

What the future of Pennsylvania skill games holds

Skill games have been operating in a gray area for years, and are starting to run rampant. Not only is this occurring in Pennsylvania, but across the country, too.

Mainly everyone from the regulated gaming industry wants skill games banned because of their lack of consumer protection and the fact that they take business away from both retail and PA casinos online.

Sen. Amanda Cappelletti, D-Delaware/Montgomery, and Rep. Mark Rozzi, D-Berks, introduced legislation earlier this month to ban skill games permanently. Cappelletti said:

“These gaming machines can be found in convenience stores, restaurants, malls, gas stations and other places of business throughout Pennsylvania. Despite the illusion that the state has oversight, there are no consumer protection measures, prevention of play by minors, assistance for problem gamblers, money laundering controls, or other regulations protecting Pennsylvanians from these predatory machines.”

The Pennsylvania Attorney General’s office had collected skill games throughout the state and considered the games as “clearly” slot machines.

Despite the majority of gaming and legislature members wanting the machines banned, Pennsylvania Senator Gene Yaw (R-23), is campaigning for regulation. He introduced a tax framework that would keep the games legal. At a recent policy hearing, the Pennsylvania Gaming Control Board (PGCB) wished to regulate the games under its jurisdiction if this were to happen.

There are a lot of moving pieces to the issue, including multiple lawsuits involving many parties. In the end, the legality of skill games is up to the Commonwealth Court.

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Corey Sharp

Corey Sharp is the Lead Writer at PlayPennsylvania bringing you comprehensive coverage of sports betting and gambling in Pennsylvania. Corey is a 4-for-4 Philly sports fan and previously worked as a writer and editor for the Philadelphia Inquirer and NBC Sports Philadelphia.

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