# Cobaugh v. Klick-Lewis, Inc.

> Supreme Court of Pennsylvania · July 14, 1989 · 385 Pa. Super. 587

URL: https://www.frixlaw.com/law-library/cases/9752560

## Case

- **Full name:** Amos COBAUGH, Appellee, v. KLICK-LEWIS, INC., Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 14, 1989
- **Citations:** 385 Pa. Super. 587; 561 A.2d 1248; 1989 Pa. Super. LEXIS 2079
- **Precedential status:** Published
- **Opinion:** Dissent by Popovich
- **Judges:** Wieand, Popovich, Hester
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752560

## How later opinions describe it (automated extraction)

- affirming trial court’s determination that entrant in golf tournament was entitled to prize advertised to whoever made hole-in-one, and listing similar cases
- noting that it is the duty of the drafter of the contract to exercise due care in explaining its offer so as not to mislead the public

## Opinion text

POPOVICH, Judge,
dissenting:
“Golf ... is ... a game of relaxed recreation and limitless enjoyment for millions and a demanding examination of exacting standards ...” (Robert Trent Jones, Preface of The Golf Course, Geoffrey S. Cornish and Ronald E. Whit-ten, The Rutledge Press, Revised Edition, 1987). In short, golf — as demonstrated by the vast majority of its practitioners who never have and never will score a round at par — is a sport requiring precise skills.
Making a hole-in-one, however, is such a fortuitous event that skill is almost an irrelevant factor. Because of that fact (an element of chance), combined with the payment of an entry fee to the East End Open Golf Tournament (consideration) and the automobile prize (reward), my view is that the necessary elements of gambling are present thus rendering the contract sub judice unenforceable as violat *595 ing the Commonwealth’s policy against gambling. 1 As our Supreme Court stated eighty-five years ago in Davis v. Fleshman, 245 Pa. 224 , 91 A. 489 (1914):
It is equally well settled in this jurisdiction that all mere wagering contracts are illegitimate transaction which the law declares void and which will not be enforced at the insistence of either party to the contract. It will not aid the winner to recover from the loser the amount of the stake, and it will not give assistance to the loser to recover back the amount of the bet after the transaction has been closed. It will leave the parties as it finds them. The law will not attempt to settle disputes arising between gamblers by enforcing their alleged rights arising out of an illegal transaction.
I raise this issue sua sponte since we have no jurisdiction to enforce a contract in violation of public policy. In re Estate of Pedrick, 505 Pa. 530, 534 , 482 A.2d 215, 222 (1984) (public policy dictates court must raise “unclean hands” sua sponte); Rossi v. Pennsylvania State University, 340 Pa.Super. 39 , 489 A.2d 828 (1985) (propriety of summary judgment raised sua sponte).
By couching this transaction in terms of a unilateral contract, the majority seems to opine that scoring a hole-in-one is an act of skill which a golfer can choose to undertake. 2 The truth is quite the opposite.
While every golfer dreams of the day when his ball flawlessly flies into the cup, few ever experience the thrill of a hole-in-one. So few in fact that “aceing” a hole is truly an act of “luck” not skill. Consider the following statis *596 tics: 3 In 1988, approximately 21.7 million golfers played 434 million rounds of golf with only 34,469 holes-in-one being reported to the United States Golf Association. Golf Digest, using figures amassed since 1952, estimates that a golfer of average ability playing a par-3 hole of average difficulty has a mere 1 in 20,000 chance of aceing the hole.
While the chances increase for a professional golfer, the possibility of a hole-in-one, even for the world’s best players, is still remote. Last year only 22 holes-in-one were recorded during the Professional Golf Association’s tournament schedule. 4 With approximately 300 touring professionals playing in 47 tournaments (four rounds per tournament, four par-3’s per round), the odds increased to approximately 1 in 10,000.
However, even at 10,000 to 1, the professional’s chances of aceing a hole are more akin to an act of God than a demonstration of skill. Clearly, the possibility of a hole-in-one is sufficiently remote to qualify as the necessary gambling requirement of an element of chance.
Since all of the elements of gambling are present, I see no reason to enforce this so-called unilateral contract, rather I would find that an unenforceable gambling contract was created. While I recognize that there are a variety of socially acceptable forms of gambling indulged in by the public for the most charitable of purposes and the worthiest of causes, they are nonetheless illicit under Pennsylvania law. Dollar raffle tickets for the benefit of a hospital or a Little League Baseball Association are bought and sold innocuously and routinely, and, yet, raffles constitute unsanctioned gambling. Only recently, under strict control, has bingo, a popular and social form of gambling been legalized. 10 Pa.C.S.A. § 301 et seq. See also 4 Pa.C.S.A. § 325.101 et seq. (horse racing); 72 Pa.C.S.A. § 3761-1 et *597 seq. (state lottery). Millions of citizens spend billions of dollars each year on sports betting in office pools or with the local bookmaker. However, only in one state, Nevada, is it legal so to do.
Thus, when such a rare case as this comes into court, it may be difficult to re-assert a public policy which everyday is violated by common experience, especially, such as here, where there probably was no thought of gambling or “breaking the law.” Nevertheless, we cannot usurp the role of the legislature or turn our heads away from the fundamental substance of this transaction: it is a contract, a contract covering the context of gambling. Hence, it is unenforceable no matter how much condoned or indulged.
. Under Pennsylvania law, the three elements of gambling are consideration, a reward and an element of chance. Commonwealth v. Weisman, 331 Pa.Super. 31 , 479 A.2d 1063 (1984); In re: Gaming Devices Seized at American Legion Post No. 109, 197 Pa.Super. 10 , 176 A.2d 115 (1961). Illegal lotteries, gambling and bookmaking are strictly prohibited as delineated in 18 Pa.C.S.A. §§ 5512 (lotteries), 5513 (gaming devices, gambling) and 5514 (pool selling, bookmaking).
. "In order to win the car, Cobaugh was required to perform an act which he was under no legal duty to perform. The car was to be given in exchange for the feat of making a hole-in-one.” Majority Op. at 592.
. The statistics are courtesy of Lois Hains, Assistant Editor, and Hope Johnson, Chief of Research, Golf Digest, the foremost comprehensive periodical on the sport of golf.
. For the record, we note that female professional golfers playing in Ladies Professional Golf Association events had 20 holes-in-one in 1988.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752560. Public record. Not legal advice.