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AMOS COBAUGH v. KLICK-LEWIS (07/14/89)

filed: July 14, 1989.

AMOS COBAUGH, APPELLEE,
v.
KLICK-LEWIS, INC., APPELLANT



Appeal from Order of the Court of Common Pleas, Civil Division, of Lebanon County, No. 87-01002.

COUNSEL

Robert M. Frankhouser, Jr., Lancaster, for appellant.

Wiley P. Parker, Lebanon, for appellee.

Wieand, Popovich and Hester, JJ. Popovich, J., filed a dissenting opinion.

Author: Wieand

[ 385 Pa. Super. Page 589]

On May 17, 1987, Amos Cobaugh was playing in the East End Open Golf Tournament on the Fairview Golf Course in Cornwall, Lebanon County. When he arrived at the ninth tee he found a new Chevrolet Beretta, together with signs which proclaimed: "HOLE-IN-ONE Wins this 1988 Chevrolet Beretta GT Courtesy of KLICK-LEWIS Buick Chevy Pontiac $49.00 OVER FACTORY INVOICE in Palmyra." Cobaugh aced the ninth hole and attempted to claim his prize. Klick-Lewis refused to deliver the car. It had offered the car as a prize for a charity golf tournament sponsored by the Hershey-Palmyra Sertoma Club two days earlier, on May 15, 1987, and had neglected to remove the car and posted signs prior to Cobaugh's hole-in-one. After Cobaugh sued to compel delivery of the car, the parties entered a stipulation regarding the facts and then moved for summary judgment. The trial court granted Cobaugh's motion, and Klick-Lewis appealed.

[ 385 Pa. Super. Page 590]

Our standard of review is well established. A motion for summary judgment may properly be granted only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. French v. United Parcel Service, 377 Pa. Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Page 590} Iron and Glass Bank, 328 Pa. Super. 135, 140, 476 A.2d 928, 930 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 430, 456 A.2d 1009, 1011 (1983); Dunn v. Teti, 280 Pa. Super. 399, 402, 421 A.2d 782, 783 (1980).

The facts in the instant case are not in dispute. To the extent that they have not been admitted in the pleadings, they have been stipulated by the parties. Therefore, we must decide whether under the applicable law plaintiff was entitled to judgment as a matter of law.

An offer is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. Restatement (Second) of Contracts § 24; 8 P.L.E. Contracts § 23. Consistent with traditional principles of contract law pertaining to unilateral contracts, it has generally been held that "[t]he promoter of [a prize-winning] contest, by making public the conditions and rules of the contest, makes an offer, and if before the offer is withdrawn another person acts upon it, the promoter is bound to perform his promise." Annotation, Private Rights and Remedies Growing Out of Prize-winning Contests, 87 A.L.R.2d 649, 661. The only acceptance of the offer that is necessary is the performance of the act requested to win the prize. Id. See also: Robertson v. United States, 343 U.S. 711, 72 S.Ct. 994, 96 L.Ed. 1237 (1952) ("The acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract."); 17 C.J.S. Contracts § 46.

[ 385 Pa. Super. Page 591]

The Pennsylvania cases which have considered prizewinning contests support the principle that an offer to award a prize in a contest will result in an enforceable contract if the offer is properly accepted by the rendition of the requested performance prior to revocation. See: Olschiefsky v. Times Publishing Co., 23 D. & C.2d 73 (Erie 1959) (overruling demurrer to action against newspaper for failure to award prize to winner of puzzle contest); Holt v. Page 591} Wood, Harmon & Co., 41 Pitt.L.J. 443 (1894) (holding offer to award house to person submitting name selected for new housing development resulted in binding contract). See also: Aland v. Cluett, Peabody & Co., 259 Pa. 364, 103 A. 60 (1918); Palmer v. Central Board of Education of Pittsburgh, 220 Pa. 568, 70 A. 433 (1908); Trego v. Pa. Academy of Fine Arts, 2 Sad. 313, 3 A. 819 (1886); Vespaziani v. Pa. Dept. of Revenue, 40 Pa. Commw 54, 396 A.2d 489 (1979).

Appellant argues that it did nothing more than propose a contingent gift and that a proposal to make a gift is without consideration and unenforceable. See: Restatement (Second) of Contracts § 24, Comment b. We cannot accept this argument. Here, the offer specified the performance which was the price or consideration to be given. By its signs, Klick-Lewis offered to award the car as a prize to anyone who made a hole-in-one at the ninth hole. A person reading the signs would reasonably understand that he or she could accept the offer and win the car by performing the feat of shooting a hole-in-one. There was thus an offer which was accepted when appellee shot a hole-in-one. Accord: Champagne Chrysler-Plymouth, Inc. v. Giles, 388 So.2d 1343 (Fla.Dist.Ct.App.1980) (bowling contest); Schreiner v. Weil Furniture Co., 68 So.2d 149 (La.App.1953) ("Count-the-dots" contest); Chenard v. Marcel ...


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