A state attorney told Supreme Court justices that so-called skill games shouldn’t be considered games of skill because too often, whether the player wins or loses is clearly a matter of chance.

The debate over whether skill games, slots-like games found in bars and convenience stores, should be deemed illegal slots games has raged for years in Harrisburg and around the state. Lawmakers have repeatedly introduced bills to formally legalize, regulate and tax skill games. But none of those bills have gained traction in the General Assembly, leaving the games unregulated even as there are now about 80,000 skill games operating in Pennsylvania.

The dispute has the casino industry and the state Lottery on one side and bar owners and the distributor of skill games on the other.

Commonwealth Court Judge Lori Dumas in 2023 upheld the ruling of a Dauphin County judge who had concluded that skill games seized from a bar were not the same as slot machines and should be deemed legal.

The Supreme Court could settle the matter.

The justices on Thursday heard oral arguments in a lawsuit that the way the games are designed, those using the machines do not always have to play the skill portion.

Not all players may even realize how to access the skill portion of the game, she said.

The initial round is a chance game, and if the player loses, he or she will immediately receive an opportunity to play again. If the player immediately begins another round, they won’t encounter the “Follow Me” game, in which the play includes an element of skill, she said.

If the player doesn’t play another round of the chance game, then a link leading to the “Follow Me” skill game appears. But the link to the “Follow Me” game doesn’t explicitly explain that it’s taking the player to the skill portion of the game, Affronti told the justices.

“Truthfully, I don’t know why anyone would touch it. It’s not telling you, press this button to play the skill game. … There’s no suggestion, that’s a way to win your money back. The only way you discover that is if you, for some reason, touch there” and follow the link, Affronti said.

Affronti said that because the game does not make it clear how to play the skills portion of the game, the skill component should not be considered a “predominant” component of the game design.

Justices on Thursday noted that the state law allowing slots play in casinos explicitly says that only machines approved by the Gaming Control Board can be deemed legal slots machines.

Based on that language, the justices could simply conclude that the skill machines are illegal because they haven’t been approved by the Gaming Control Board.

The skill games should not be lumped in with casino slots games, because they do offer a pathway for players to win every time, said Matt Haverstick, representing a skill games distributor Capital Vending Company.

He said the commonwealth attorneys were trying to bring new facts before the Supreme Court justices rather than relying on the record from the lower courts.

The Dauphin County judge found that the “Follow Me” game can be won every time it’s played.

“The record, as we know, because it was admitted by their witnesses and our witnesses testified to it too, has the game in question being a winnable on every play for 105%” of the value of the cost of playing the game, Haverstick told the justices.

A decision in the case will likely be handed down in 2026.