concurring:
I agree with the majority that the Supreme Court’s decision in Two Electronic Poker Game Machines did not unforeseeably enlarge the statutory proscription against possession of gambling devices. However, even if it had been an unforeseeable enlargement, I do not believe that the present forfeiture of these machines based on Two Electronic Poker Game Machines would constitute a retroactive application of that case. I reach this conclusion because of the Supreme Court’s decision that this type of machine constitutes a gambling device per se (an object the possession of which, without more, constitutes a crime).1 It would be the height of absurdity to return the machines in question to appellant when, since they are gambling devices per se, they would be subject to seizure and forfeiture immediately upon their return to appellant’s possession. Thus, the present forfeiture of the machines does not require a retroactive application of Two Electronic Poker Game Machines, but simply reflects the fact that machines, the possession of which is illegal, cannot be given to appellant.
For these reasons, I agree with the majority that the judgment of the court below should be affirmed.
. Appellant’s argument to the contrary, the forfeiture provisions of 18 Pa.C.S. § 5513(b) governing gambling devices are applicable to mere possession. Commonwealth v. Bretz, 289 Pa.Super. 259, 433 A.2d 55 (1981).