concurring and dissenting.
I agree with the majority’s conclusion that the trial court erred in granting the Commonwealth’s request for forfeiture of the money seized from the Appellant; however, I disagree with the majority’s decision to direct the return of the Oldsmobile and the car phone and therefore I concur only in part and file this dissent.
The majority correctly determines that the Oldsmobile and the car phone are “devices” and therefore that the issue becomes whether they are “gambling devices” for purposes of the statute. The majority, noting that the three elements of gambling are consideration, an element of chance, and a reward,1 concludes that “a device only becomes a ‘gambling device’ where one pays for its operation and, depending on the outcome of that performance, either gains a reward or suffers a loss.” (Emphasis added.) The majority further concludes that, since neither the Oldsmobile nor the car phone were part of a game that involved people placing bets *245(consideration) on whether or not the Oldsmobile or the car phone would yield some result (element of chance) such that the bettor might receive monetary gain (reward), neither the Oldsmobile nor the car phone were “gambling devices” subject to forfeiture.
In so concluding, the majority merely determines that the Oldsmobile and the car phone are not “gambling devices” per se;2 thus, the issue still remains whether, under the facts of this case, the Oldsmobile and the car phone as used by the Appellant are subject to forfeiture under the statute.
The majority asserts that its position, that the Oldsmobile and the car phone áre not “gambling devices” and thus not subject to forfeiture, is supported by Commonwealth v. DiOrio, 159 Pa.Superior Ct. 641, 49 A.2d 866 (1946). I believe that such reliance is misplaced and that DiOrio is neither controlling nor persuasive herein.
In DiOrio, the Superior Court held that an automobile used to pick up number plays was not subject to forfeiture under either Sections 59 or 60 of the Crimes Code.3 The DiOrio court, relying on its decision in American Telephone & Telegraph Company’s Appeal, 126 Pa.Superior Ct. 533, 191 A. 210 (1937), concluded that Sections 59 and 60 must be construed with the specific gambling devices mentioned in Section 55.4 The DiOr-io court further concluded that since the legislature had not specifically enacted that a machine, such as an automobile, which was knowingly used to furnish or obtain information to be used in gambling may be seized or forfeited, the automobile was unlawfully taken from the defendant.
The majority asserts that the court in DiOrio did not simply state that if a device was not enumerated in the statute it was not a “gambling device.” In so asserting, the majority ignores the legal holding in DiOrio and instead attempts to rely upon extraneous reasons offered in support of the holding which are tantamount to dicta. Thus, DiOr-io cannot serve as a basis of support for the majority’s position.
Section 5513(b) of the Crimes Code provides for the forfeiture of any gambling device possessed or used in violation of subsection (a) which provides, in pertinent part, that a person is guilty of a misdemeanor of the first degree if he intentionally or knowingly makes use of any device to be used for gambling purposes. See 18 Pa.C.S. § 5513(a) and (b). There is no dispute that under the facts of this case, as evidenced from the testimony of both Trooper Tonetti and Trooper Jessie, the Oldsmobile and the car phone were used by the Appellant in the conduct of his gambling operation and therefore are by their use “gambling devices” subject to forfeiture. Accordingly, I would affirm in part the decision of the trial court with respect to the forfeiture of the Oldsmobile and the car phone and reverse in part with respect to the $300.00 in United States currency.
. See Commonwealth v. Weisman, 331 Pa.Superior Ct. 31, 479 A.2d 1063 (1984).
. In Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983), the Supreme Court endeavored to develop a meaningful test for judging whether a given machine is a "gambling device” per se. The Supreme court determined that in order for the historical standard, that a machine is a gambling device per se if it can be used for no purpose other than gambling, to be useful, it cannot mean that the machine could not possibly be used for any activity other than gambling. The Supreme Court concluded instead that the inquiry must be whether the machine is so intrinsically connected with gambling. The Supreme Court therefore held that if a machine displays all three elements of gambling, it wiE then be so intrinsicaEy connected with gambling as to be a gambling device per se.
. Repealed, former Act of March 31, 1860, P.L. 382, as amended, 18 P.S. §§ 1444 and 1445. For subject matter of repealed sections, see, now, 18 Pa.C.S. § 5513.
. Section 55, which has also been repealed, provided a statutory list of specific gambling devices, as follows:
Any game or device of address or hazard, with cards, dice, büliard baUs, shuffle boards, or any other instrument, article or thing whatsoever, heretofore or which hereafter maybe invented, used or employed, at which money or other valuable thing may or shall be played for, or staked or betted upon.
See DiOrio, 159 Pa.Superior Ct. at 642, 49 A.2d at 867.