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filed: June 14, 1989.

Appeal from the Judgment Entered May 16, 1988 in the Court of Common Pleas of Philadelphia County, Civil at No. 1027 September Term, 1982. Appeal from the Order dated June 8, 1988 in the Court of Common Pleas of Philadelphia County, Civil at No. 1027 September 1982. Appeal from the Order of June 10, 1988 in the Court of Common Pleas of Philadelphia County, Civil at No. 1027 September Term, 1982.

Joseph E. Conley, Jr., Philadelphia, for appellant (at 1813, 2016) and appellees (at 1866, 1867).

Thomas R. Kline, Philadelphia, for appellees (at 1813, 2016) and appellants (at 1866, 1867).

Cavanaugh, Popovich and Hoffman, JJ.

Author: Popovich

[ 385 Pa. Super. Page 153]

This case involves cross-appeals from the orders of the Court of Common Pleas of Philadelphia County, all reduced to judgment, challenging the entry of delay damages (at Nos. 1866 & 2016 PHL 1988), the grant of Rite Aid Pharmacy's judgment n.o.v. (at No. 1867 PHL 1988), and the denial of a judgment n.o.v. and/or a new trial by Merrell Dow Pharmaceuticals, Inc. (at No. 1813 PHL 1988). We reverse in part and affirm in part.

Our inquiry starts with the judgment n.o.v. allegation, and, as a result, we must view the evidence in a light most favorable to the verdict-winner. McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991 (1982). Under such a standard, the evidence reveals that Joan Blum was prescribed Bendectin in February and March of 1980 by her obstetrician for treatment of nausea and vomiting ("morning sickness") during the first trimester of her pregnancy.

In September of 1980, Mrs. Blum gave birth to a son (Jeffrey) diagnosed as having a "severe" case of talus equinovarus (bilateral "clubbed feet"). Thereafter, a complaint in trespass was filed against the manufacturer (Merrell Dow) and distributor (Rite Aid) of the drug, asserted by

[ 385 Pa. Super. Page 154]

    the Blums to be the direct and proximate cause of Jeffrey's deformity. The theories of recovery encompassed claims based on, inter alia, negligence, strict liability, breach of express and implied warranties, and fraud and misrepresentation of the testing and marketing ("labeling") of the drug's efficacy.

The 44-day trial (which generated over 4,000 pages of testimony) began with the appearance of Doctor Alan Kimball Done, a specialist in the field of pediatrics. He testified to conducting an examination of Jeffrey, perusing all the medical records and the deposition testimony of the attending orthopedic surgeons. He testified to relying upon the structure/activity of the drug, as well as in vitro, animal and epidemiologic studies in reaching his conclusion that Bendectin is a teratogen (causes or increases the risk of birth anomalies) in humans, and, to a degree of reasonable medical certainty, was "capable of contributing to the formation of Jeffrey's limb malformation[;]" there "being no reasonable likelihood . . . that there could be any other basis for explaining it."

As for the Bendectin label, Doctor Done believed that it contained misinformation by citing the incidence of birth defects in offspring as being no higher in women who ingested the drug when compared to those who were not exposed. His review and interpretation of the studies indicated otherwise. Moreover, because Merrell Dow's Unisom label read that it was "contra-indicated in women who were pregnant or nursing", the same warning should have appeared in the Bendectin packaging since both drugs contained doxylamine succinate, thought by Doctor Done to be the teratogenic component. Accordingly, it was the witness' opinion that the standard of pharmaceutical care in 1980 required Merrell Dow to list the hazards associated with Bendectin, i.e., it should not have been used during pregnancy, on the labeling material. Merrell Dow's failure to warn of the "high degree of risk of harm", associated with the ingestion of Bendectin during pregnancy, was felt

[ 385 Pa. Super. Page 155]

    by the witness to be inconsistent with the information available on the drug's teratogenic qualities.

The next expert to testify was a Doctor Gross. He subjected Merrell Dow's data and animal studies to analysis to determine whether the results were statistically significant (had "power"), such that Bendectin could be considered the cause of the increase in birth defects; in other words, was the drug a teratogen? He decided it was, and he stated his position thusly;

Further, it was the contention of Doctor Gross that Bendectin was "clearly, without any question, a marked, significant teratogen" that should not have been marketed for use during pregnancy.

Doctor Gross also considered the 1980 Bendectin label to be "false" in discussing the absence of any "drug-induced fetal abnormalities" occurring at levels of up to ninety times the maximum human dose. His review of the evidence indicated, "unequivocally", that the drug should be branded a teratogen. Although the witness conceded he did not review any epidemiological studies on the subject, he was still able to "extrapolate" the risk Bendectin posed to humans from the animal studies performed. Similarly, he was unaware of any drug found to cause birth defects in animals, which, upon investigation, did not cause birth defects in humans.

Doctors Done and Gross held fast to their opinions -- despite the flaws which plagued some of the studies they relied upon and the existence of a body of contrary views

[ 385 Pa. Super. Page 156]

    held by others in the field as to Bendectin's teratogenic attributes -- that Bendectin caused Jeffrey's clubbed feet.

Other witnesses to testify on behalf of the plaintiffs included Mr. and Mrs. Blum, their obstetrician, the two orthopedic surgeons who operated on Jeffrey and the pharmacist who filled Mrs. Blum's prescription. Thereafter, the plaintiffs' case came to a close and the presentment of a motion for non-suit was denied.

The defense's side of the case started with the presentment of the deposition testimony of Doctor Herschel Jick, a clinical pharmacologist, who collected data on Bendectin and other drugs to see if they were producing any abnormalities in the children born to women who took the drug(s) during pregnancy.

The time-frame for Jick's study covered July of 1977 through December of 1979. The results, published in the Journal of the American Medical Society in July of 1981, were that there was no "strong" association between the use of any of the drugs and all congenital disorders.

To the extent that the study initially showed a statistically strong association between Bendectin and some of the deformities, it was discovered that this occurred as a result of a disorganization in the data, which, upon examination of additional (future) data, evidenced no nexus between Bendectin and the minor limb disorders that were excluded, correctly, from the study.

Doctor Jick did state, however, that:

In Jick's opinion, the data did not show Bendectin having an adverse effect on developing limbs. However, he did caution "one cannot rule out from these data a small effect."

[ 385 Pa. Super. Page 157]

The second expert to appear on behalf of the defense was Doctor Paul E. Stolley, a specialist in the science of epidemiology (the study of the distribution and determinants of disease in human populations). He reviewed 30-35 studies (cohort and case control) and found that there was no correlation between congenital malformations and Bendectin. As stated by Doctor Stolley:

Bendectin has not been shown . . . to be associated with any particular birth defect; and what is, perhaps, more important, no causal relationship can be inferred from the occasional associations that have been shown in some studies, but not confirmed in others.

Doctor Peter Mamunes, board certified in pediatrics and endocrinology, was the next expert to take the stand. He did a genetic evaluation of Jeffrey and his parents. His opinion, within a reasonable degree of medical certainty, was that Bendectin did not cause Jeffrey's condition. On cross-examination, Doctor Mamunes repeated his position that Jeffrey had multifactorially inherited clubbed feet, and he was predisposed to some environmental event (meaning anything other than a genetic cause) in utero, which resulted in his abnormality.

Doctor Mamunes was of the belief that Bendectin could not cause clubbed feet, and he was never impressed by the literature to lead him to believe that Bendectin should not be administered during pregnancy. Nonetheless, the doctor agreed with counsel for the plaintiffs that:

Further, when Doctor Mamunes was asked by plaintiffs' counsel whether he would consider Bendectin "totally safe", the witness responded that he would not use such terms to describe any drug, including Bendectin. Thus, to the inquiry: "If you can't be absolutely certain that any drug is totally safe, then we can't be absolutely certain about

[ 385 Pa. Super. Page 158]

    bendectin as one of the drugs?" the witness answered: "That's correct."

In regard to the basis for the belief that Bendectin was safe, Doctor Mamunes relied upon a series of textbooks; one was by the author Briggs. Yet, on cross-examination, plaintiffs' counsel elicited from the witness that, during his earlier deposition, he had agreed with the last paragraph in the 1986 edition of Briggs' textbook, which read:

Although the literature supports the relative safety of this product [Bendectin] when compared to the normal background of malformations, it is not possible to state that it was completely without risk to the fetus.

As to Doctor Mamunes' diagnosis of Jeffrey having Ehler-Danlos syndrome, which exhibits itself by hyperextensibility of the skin and joints, the witness admitted:

[He] only had the opportunity to examine [Jeffrey's] hands and his arms and his fingers because his feet and legs were in casts. So it was very hard to be certain [as to his diagnosis], when only examining one part of the body . . . .

In response to the question whether drug ingestion alone could cause birth defects, Doctor Mamunes answered:

That's a very debatable point. There are lots of -- I am not sure that that's true. And I don't think that the literature is clear on that. Because there are many people who take that same drug [-- Bendectin --] and have no problem with their offspring and other people who do have problems with that drug, and the offspring who is malformed.

The defense continued with its parade of experts by presenting Doctor James Lee Goddard, former chief of the Communicable Disease Center in Atlanta. He opined that Merrell Dow complied with the standards that existed in the pharmaceutical industry at the time (1966) it submitted its then new drug application to the Food and Drug Administration for Bendectin, and that Bendectin was safe for use in human pregnancy. Next in line was a Doctor Brent, an epidemiologist, who reviewed the literature on Bendectin

[ 385 Pa. Super. Page 159]

    and concluded that it caused no reproductive toxicology effects and no birth defects. It was not a teratogen. This was consistent with the beliefs of expert-witness Doctor Hoekenga.

The sixth expert was Doctor Steven Lamm, a specialist in epidemology and a pediatrician by profession, he examined all of the information on hand and pooled the data (with regard to the sales of Bendectin and its correlation to birth defects) to reach his decision that women who take Bendectin are not at an increased risk of having children with any congenital malformations. However, he could not dispute the fact that in certain studies there are statistically significant associations between the ingestion of Bendectin and various birth defects, even though the witness' pooled data did not show a statistically significant association.

Doctor Peter D. Pizzutillo, an expert in pediatric orthopedics, examined Jeffrey's medical records and the available literature in the field. He saw no casual relationship between Bendectin and the resultant clubbed feet. In his opinion, Jeffrey's condition would be considered "idiopathic", a diagnostic term meaning "no identifiable cause for the problem. It is yet to be identified."

The last expert to testify of note was Doctor Richard Skalko, a specialist in developmental and experimental teratology. He found that Bendectin was neither mutagenic (ability of a drug to mutate chromosomes or DNA) nor teratogenic (producing congenital malformations). His review of Merrell Dow's studies failed to evidence the presence of any dose-response, i.e., with an increase in dosage of a drug one would expect an increase in response/effect to the drug treatment. This did not occur.

With the completion of the testimony, the jury was charged and returned a verdict finding Bendectin to be a substantial contributing factor in causing Jeffrey's birth defect, and, as such, Merrell Dow (the manufacturer) and Rite Aid (the supplier of the product to Mrs. Blum) were held liable in the amount of 2 million dollars (in compensatory and punitive damages) to the plaintiffs. Thereafter,

[ 385 Pa. Super. Page 160]

    delay damages, in the amount of $30,680.00, were added to the verdict, while Rite Aid was dismissed as a party to the litigation on its motion for judgment n.o.v. With the filing and denial of various post-trial motions, the various orders relating thereto were reduced to judgment and the multiple appeals presently before this Court were perfected.

The initial issue deals with Merrell Dow's contention that its right under the Pennsylvania Constitution to a trial by jury, composed of twelve members, was violated when the court below permitted the case to proceed with eleven jurors, despite its objections.

Before addressing the jury-composition issue, we must respond to the plaintiffs' assertion that the matter has not been preserved for appellate review.

The plaintiffs point to Merrell Dow's failure to set forth anywhere in its pleadings a demand for a jury of twelve, let alone a request for a jury trial. The plaintiffs also make reference to an unrecorded pretrial conference (held on or about September 18, 1988) as the time when Merrell Dow's counsel agreed to an eight-person jury. See Plaintiffs' Brief at 15. Further, the plaintiffs argue that it was "understood" by the parties that the trial court would begin with twelve jurors and allow the case to go forward with as few as ten jurors if need be, a fact which was admitted, allegedly, by counsel for Merrell Dow when Juror # 3 was excused. Id. at 16.

Our review of the record is at odds with the plaintiffs' accounting. For example, the first pleading filed by Merrell Dow, i.e., the complaint in trespass, had on the facesheet: "JURY TRIAL DEMANDED". This is clearly consistent with the requirements set forth in Pa.R.Civ.P. 1007.1(a) that a demand for a jury trial is to be made either by endorsement on a pleading (as was the case here) or by a separate writing not later than twenty days after the service of the last permissible pleading. Compare Stathas v. Wade Estate, 251 Pa. Super. 269, 274, 380 A.2d 482, 484 (1977); Cowan v. Rubin, 28 Pa.D. & C.2d 455, 460 (Phila.Cty.1962). Moreover, on October 24, 1986, Merrell Dow

[ 385 Pa. Super. Page 161]

    demanded in a written submission to the trial court a twelve-person jury with two alternates. Albeit Merrell Dow's request for 12 jurors was granted, no alternates were permitted to be chosen before the case went to trial on December 3, 1986.

As for the plaintiffs' referral to a pretrial conference in which Merrell Dow supposedly acquiesced to a trial composed of less than the twelve-member panel requested, the support for the same is not of record and appears only in the plaintiffs' brief, factors which preclude us from placing any credence in such a statement attributing Merrell Dow with the waiver of its jury-trial argument. This is proper in the face of a barren record, the rectification of which is not accomplished by the plaintiffs' attempt to reconstruct what occurred below. See McCormick v. Allegheny General Hospital, 364 Pa. Super. 210, 527 A.2d 1028 (1987); Hartgraves v. Don Cartage Co., 63 Ill.2d 425, 348 N.E.2d 457 (1976).

The course we pursue is proper in the face of transcribed discussions in which the trial court excused Juror # 3 and its proceeding in his absence was objected to by Merrell Dow via a motion for a mistrial. See Reproduced Record at 2265-2275. As such, this ground was not waived. Compare Love v. Harrisburg, Coca-Cola Bottling Co., 273 Pa. Super. 210, 216, 417 A.2d 242, 245 (1979).

We now turn to Merrell Dow's contention that "prejudicial error" occurred in the continuation of the case, over its objection, when Juror # 3 became seriously ill and could not appear for the twelfth day of trial. Such action, argues Merrell Dow, violated its right to a trial by jury guaranteed by Article 1, § 6 of the Pennsylvania Constitution, as amended May 18, 1971; viz.:

Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case.

[ 385 Pa. Super. Page 162]

It is the position of Merrell Dow that nowhere does the Pennsylvania Constitution or statute (42 Pa.C.S. § 5104(b)*fn1) authorize deliberations by a jury of fewer than twelve where a party/litigant has made an unrelinquished demand for such an empanelment.

Before discussion of any case law on the subject at hand, we will give an overview, from an historical perspective, of the concept of juries of twelve in this Commonwealth, which has its origin in a document introduced and adopted in Pennsylvania in 1682 by William Penn and known as "Laws Agreed Upon in England". Comment, The Jury Size Question In Pennsylvania: Six Of One And A Dozen Of The Other, 53 Temple L.Q. 89, 100 (1980).

Penn's other writings discussed the evolution of the jury and his belief that it was a "fundamental" part of the government and important to a free society. However, "nowhere did he endeavor to explain why a jury required twelve members to fulfill its purpose." Id. at 103 (Footnote omitted). One commentator has observed:

Id. at 104-105 (Footnote omitted). Likewise, there is very little information available that casts any light on the intent of the framers of the Pennsylvania Constitution of 1776 regarding the size of juries. Id. at 106. The same can be said with regard to the Constitutional Conventions of 1790 and 1838. As for the 1873 Convention, discussion was had on the deletion of the unanimity requirement and the elimination of the term "heretofore". Some saw no problem

[ 385 Pa. Super. Page 163]

    with this since they equated a trial by jury with a jury of twelve men, whereas others believed excising the word "heretofore" would pave the way for a jury of "'three or five or seven . . . [or less than twelve] as a constitutional jury . . . .'" Id. at 112-113. The proposal was defeated without explanation.

The framers at Pennsylvania's 1968 Convention did not consider the jury provision at all, believing that it was beyond their jurisdiction to affect that right. See Comisky & Krestal, Analysis of New Judiciary Article, 40 Pa.B.A.Q. 68, 77 (1968). Even so, our first Constitution of 1776 contained verbiage which has survived and appears in the present-day Article 1, § 6. E.g., the 1776 Constitution declared that "trials by jury shall be as heretofore." The Constitution of 1790, and the amended ones of 1838, 1873 and 1968, adopted substantially the same provision. Their language was "trial by jury shall be as heretofore, and the right thereof remain inviolate." From our reading of the case law, we find that the previous Constitutions were preoccupied with the preservation of a trial by jury, not its extension. See, e.g., Byers v. Commonwealth, 42 Pa. 89, 94 (1862); Pa. Publications v. Penn. Public Utility Commission, 152 Pa. Super. 279, 290, 32 A.2d 40, 45 (1943), rev'd on other grounds, 349 Pa. 184, 36 A.2d 777 (1944).

It has been written that "[t]he great purpose of the constitution in providing that 'trial by jury shall be as heretofore, and the rights thereof remain inviolate,' was not to contract the power to furnish modes of civil procedure in courts of justice, but to secure the right of trial by jury in its accustomed form before rights of person or property shall be finally decided." Haines v. Levin, 51 Pa. 412, 414 (1865). More to the point, in Smith v. Times Publishing Co., 178 Pa. 481, 36 A. 296 (1897), the Pennsylvania Supreme Court was reviewing the claimed excessiveness of a jury's award under the then recently promulgated Act of 1891 authorizing such an inquiry on appeal.

The Smith Court, in reversing the judgment and upholding the validity of the Act of 1891 as not an infringement of

[ 385 Pa. Super. Page 164]

    one's right to a trial by jury, made some observations which, albeit dicta, are germane to our ruling this date; to-wit:

"Trial by jury is by twelve free and lawful men who are not of kin to either party, for the purpose of establishing the truth of the matter in issue. * * * The definition of a jury . . . is . . . and all the authorities agree that the substantial features, which are to be "as heretofore," are the number twelve, and the unanimity of the verdict. These cannot be altered, and the uniform result of the very numerous cases growing out of legislative attempts to make juries of less number, or to authorize less than the whole to render a verdict, is that as to all matters which were the subject of jury trials at the date of the constitution, the right which is to remain inviolate, is to a jury "as heretofore," of twelve men who shall render a unanimous verdict. * * * "The constitutional provisions do not extend the right, they only secure it in cases which it was a matter of right before. But in doing this they preserve the historical jury of twelve men, with all its incidents[.]"

178 Pa. at 498-499, 36 A. at 297 (Citations omitted; emphasis in original). Accord Commonwealth v. Fugmann, 330 Pa. 4, 29, 198 A. 99, 111 (1938); Wellitz v. Thomas, 122 Pa. Super. 438, 440, 185 A. 864 (1936); Commonwealth v. Collins, 268 Pa. 295, 299, 110 A. 738, 739 (1920). Thus, we have the unequivocal pronouncement in Smith that a "trial by jury" is inextricably linked to the number "12". Given this fact, it is not for Superior Court, as an intermediate appellate court, to alter established law, regardless of one's

[ 385 Pa. Super. Page 165]

    argument that the case is dated. On this exact topic, this Court, through this writer, has stated its position as follows:

Mohn v. Hahnemann Medical College and Hospital of Philadelphia, 357 Pa. Super. 173, 176, 515 A.2d 920, 922 (1986), reargument denied October 14, 1986.

Although there is no denying that a scrutiny of the Constitutional debates, treatises on the matter and case law leave one without any ("concrete") insight as to the origin of the number 12, there is no doubt that this number was considered an essential element of a jury and was incorporated into our inviolate constitutional right of a trial by jury. See Fugmann, supra; Wellitz, supra; Collins, supra; Smith, supra.

As an "essential" feature of a trial by jury, the number 12 is implicit in the term "jury" as found in the Pennsylvania Constitution and is not subject to change except by way of a constitutional amendment, or a pronouncement of the Pennsylvania Supreme Court re-examining its initial interpretations of the "jury trial" question and altering its stance as occurred in Williams v. Florida, 399 U.S. 78, 102, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970), by the United States Supreme Court, wherein it held that the Sixth Amendment did not require a 12-man jury trial in criminal cases, and the fact that the jury at common law was composed of precisely 12 was an historical accident, unnecessary to effect the purposes of the jury system and wholly without significance "except to mystics".

[ 385 Pa. Super. Page 166]

With respect to the need for a constitutional amendment to alter the numerical configuration ("12") of a trial by jury in civil cases, this is not unprecedented when one considers that the unanimity requirement has undergone change. For instance, in 1971, the Legislature adopted language in Article 1, § 6 giving itself the power to promulgate the authorization of a verdict rendered by less than all the members of a jury, i.e., five-sixths of the jury in any civil case. And, attempts to limit the five-sixths majority verdict to those cases where counsel agreed to it were defeated. See 1975 Pennsylvania Senate Legislative Journal at 807-809. This culminated in the codification of the Legislature's efforts in 42 Pa.C.S. § 5104(b), wherein the five-sixths rule was made law and the century-old "inviolate" unanimity requirement was dispensed with. Therefore, since it was necessary to amend the Pennsylvania Constitution in order to grant the Legislature authority to tamper with the essential element of unanimity, it should be no different when it comes to another essential element, the number 12. Compare State v. Hamm, 423 N.W.2d 379, 381 (Minn.1988) (similar case except it deals with the question in a criminal context).

Furthermore, the cases reviewed by this Court have indicated that, in the absence of stipulation or consent on the record to receive a verdict of less than the constituted number, the verdict of the jury is to be considered a nullity.*fn2 See, e.g., Kardibin v. Associated Hardware, 284 Pa. Super. 586, 598-599, 426 A.2d 649, 655-656 (1981), quoting Commonwealth v. Beard, 48 Pa. Super. 319, 324 (1911). Accord Waldman v. Cohen, 125 A.D.2d. 116, 512 N.Y.S.2d 205, 207-208 (1987); Hartgraves, supra; Brame v. Garwood, 339 So.2d 978 (Miss.1976); Bourne v. Atchison, Topeka and Santa Fe Railway Co., 209 Kan. 511, 516-519, 497 P.2d 110 (1972); State ex rel. Polk v. Johnson, 47 Wis.2d 207, 177 N.W.2d 122, 125-127 (1970); Johnson v. Holzemer,

[ 385 Pa. Super. Page 167263]

Minn. 227, 116 N.W.2d 673 (1962); see also Commonwealth v. A Juvenile, 384 Mass. 390, 425 N.E.2d 294 (1981); Anno., Proper Procedure Upon Illness Or Other Disability Of Civil Case Juror, 99 A.L.R.2d 684 (1965). Because Merrell Dow objected to the continuation of the case when Juror # 3 was excused, we find that the Constitutional right to a trial by jury of twelve members was violated instantly.

To the extent that the plaintiffs proffer Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973), in support of a contrary view, we find it to be distinguishable. It is true that in Colgrove, the United States Supreme Court, on the heels of Williams v. Florida, supra, found that a 12-member jury trial in a civil case was not constitutionally mandated by the Seventh Amendment of the United States Constitution.

Unlike Colgrove, at bar we have the highest state court interpreting its state's constitution to embrace the approbation of a 12-person jury panel. See Smith, supra; see also Palmer v. Ford Motor Co., 498 F.2d 952, 954 (10th Cir.1974). As a consequence, we find Colgrove to be unpersuasive, and, even if we were to hold otherwise, it has been oft-stated that the courts of a state can ascribe greater constitutional protection to its citizenry than does its federal counterpart. See, e.g., Commonwealth v. Beaver, 317 Pa. Super. 88, 99, 463 A.2d 1097, 1103 (1983). We do so now on the strength of our Supreme Court's decisions cited supra. And, by doing so, we affirm over 700 years of English common law history since the 12-person jury became established at the end of the reign of Henry II in the 12th century. Concomitantly, we leave the door open for the Pennsylvania Supreme Court to change, if it so decides, its 1891 decision defining what constitutes a jury under the Pennsylvania Constitution.

Because the trial court has acted inconsistently with established, albeit vintaged, case law in this jurisdiction, we need to reverse and remand for a new trial.

Notwithstanding our primary ruling, to the extent that the trial court granted Rite Aid's judgment n.o.v., our review of the facts and law on this aspect of the case

[ 385 Pa. Super. Page 168]

    necessitates an affirmance of this segment of the trial court's appealed orders. See Coyle v. Richardson-Merrell, Inc., 372 Pa. Super. 118, 538 A.2d 1379 (1988). As a result, the orders reduced to judgments and appealed at Nos. 1816, 1866 and 2016 PHL 1988 are reversed and remanded for a new trial. However, judgment entered and appealed at No. 1867 PHL 1988 is affirmed.

Judgments reversed in part and affirmed in part. Jurisdiction is relinquished.

Judgments reversed in part and affirmed in part. Jurisdiction is relinquished.

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United States District Court, Eastern District of Pennsylvania

January 8, 1999

The opinion of the court was delivered by: Katz, District Judge.

The plaintiffs, an opt-in class of fourteen current and former employees of defendant Resources for Human Development, Inc. (RHD), claim that RHD underpays its employees for overtime because it does not include bonuses and its contributions to the employees' benefit plan in the employees' regular pay rate as required by the Fair Labor Standards Act (the FLSA). Before the court is the defendant's motion for summary judgment.*fn1

The Fair Labor Standards Act is intended to guarantee to employees certain minimum labor standards. See Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). It does so principally by requiring the payment of a minimum wage and the payment of an overtime premium of one and one half times the employee's regular rate of pay for hours worked in excess of forty in a given week. See 29 U.S.C. § 206, 207(a). At issue in this case is whether the defendant is properly calculating its employees' regular rate. It uses their hourly wage, but plaintiffs argue it should be higher because it should include contributions to the benefit plan and bonuses. Preliminary to those issues, though, RHD argues that the FLSA's overtime pay rule is not applicable to plaintiffs at all because they are a type of employee exempted from the Act's coverage.

Companion Exemption

RHD argues that the plaintiffs are not covered by the FLSA because they are members of a class of employees exempted by statute. Specifically, the Act excludes from coverage "any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves." 29 U.S.C. § 213(a)(15). To fit within the exemption, then, the statute requires that three elements must be met: (1) the employees must be employed in domestic employment, (2) the employees must provide companionship services, and (3) the services must be for qualified aged or infirm individuals.

Exemptions from the FLSA are to be construed narrowly against the employer. It is the employer's burden to prove that its employees come within the scope of the exemption, and "any exemption from the Act must be proven plainly and unmistakenly." Friedrich v. U.S. Computer Servs., 974 F.2d 409, 412 (3d Cir. 1992). The specific requirements of the elements of the companion exemption are not set forth in the statute. Rather, they are articulated in the regulations and interpretations of the Secretary of Labor.*fn2 The regulations define "domestic service employment" as follows:

  services of a household nature performed
  by an employee in or about a
  private home (permanent or temporary)
  of the person by whom he or she is
  employed.*fn3 The term includes employees
  such as cooks, waiters, butlers, valets,
  maids, housekeepers, governesses,
  nurses, janitors, laundresses, caretakers,
  handymen, gardeners, footmen, grooms,
  and chauffeurs. . . . This listing is illustrative
  and not exhaustive.

29 C.F.R. § 552.3. To restate, to be employed in domestic employment, employees must perform household services in a private home.

Defendant cannot satisfy its burden of proving that its employees meet this test for domestic employment, because RHD's clients' homes are sufficiently institutionalized that they are not "private homes" within the meaning of the statute. The court's decision is informed by the similar analyses performed by other district courts in Linn v. Developmental Serve, of Tulsa, Inc., 891 F. Supp. 574, 577-80 (N.D.Okla. 1995), and Lott v. Rigby, 746 F. Supp. 1084, 1086-89 (N.D.Ga. 1990), as well as Terwilliger v. Home of Hope, Inc., 21 F. Supp.2d 1294, 1300 (N.D.Okla. 1998). See also Bowler v. Deseret Village Assoc., Inc., 922 P.2d 8 (Utah 1996). Each of these cases makes it clear that the private home determination is highly fact-specific and to be made on a case-by-case basis, and that no one factor is dispositive. To engage in the required analysis of the facts, it is first necessary to set forth a somewhat detailed description of the RHD program.*fn4

RHD is a non-profit corporation engaged in providing human services programs including head-start programs, community health centers, low income housing, transportation services, community living programs for adults with mental health and mental retardation challenges, drug and alcohol abuse programs, and assistance to homeless people. To do so, it is subdivided into several programs, and it employs a total of approximately 2,400 people. Plaintiffs are or were residential advisors in RHD's "Mandela" and "Visions" programs. These programs provide assistance, support, and training to adults who face mental health or mental retardation challenges. Stip. ¶¶ 1-4.

These RHD programs serve adults released from state mental hospitals or referred by other agencies who are not able to care for themselves on their own but do not need hospitalization. See Def.Ex. 1 (Bligen.Decl.) ¶ 2; Def.Ex. 3 (Johnson Decl.) ¶ 2. The case managers overseeing the individuals' de-institutionalization must find a service provider that will provide community living arrangements in a controlled setting. RHD, through its Mandela and Visions programs, is one such provider in the Philadelphia area. The RHD community living arrangements are considered a middle step to independence. Some of the clients can learn to live on their own, through a long and difficult process.

Each individual receives the services of a county case management team, which oversees the use of government funds based on a treatment plan developed by the county mental health professionals on the team, with the input of the individual, the individual's advocate, and family members. When a service provider such as RHD is involved, it also has input into the development of the treatment plan. The plan, the contents and implementation of which are controlled by state and federal regulations, specifies the individual's appropriate living arrangement. If RHD and the individual agree to place the person in the program after a referral from the case manager, state and federal resources that supported that person in the institution or prior living arrangement follow him or her into the RHD community living arrangement. See Pl.Ex. 2 (Bligen Dep.) at 5-7. Once RHD enters into a contract with the county undertaking to provide services for the individual, it must comply with the requirements of the plan to receive funding. County case managers and other county officials assess compliance through periodic review of documentation and quarterly and yearly inspections. See Pl.Ex. 4 (Cox — Scales Dep.) at 35.

When a client first is referred to an RHD program, one of the first tasks for the client and RHD is to decide where the client will live. Usually, the RHD representative will know at the time of the initial interview at which location the new client will be placed. In other instances, the RHD representative will work with a realtor to develop a list of locations that are pre-approved by the county case management team. Only after that pre-approval is the location shown to the client. See Pl.Ex. 2 (Bligen Dep.) at 20, 34-35. The client enters into a rental agreement with RHD, and RHD rents from whatever third party owns the property (RHD owns one location itself). See Pl.Ex. 15-18 (examples). Each lease RHD enters into with a landlord contains a clause which provides that if the program loses government funding, RHD may terminate the lease. See Pl.Ex. 5 (Jackson Dep.) at 147; Pl.Ex. 17 (example).

RHD clients pay up to seventy-two percent of their monthly Social Security Disability payments to RHD, which goes toward rent and other ordinary household expenses such as food and utilities. See Def.Ex. 1 (Bligen Decl.) ¶ 6; Def.Ex. 3 (Johnson Decl.) ¶ 6. In the case of at least one residence, the amount paid by the client does not cover the lease expenses of the home.*fn5 For an apartment at the 1705 Hamilton Building for which RHD pays monthly rent of $649, the one client who lives there pays $375.41 monthly, which goes not only to rent but for food and utilities. The difference is made up by state and county funds. See Pl.Ex. 2 (Bligen Dep.) at 39. Utilities are frequently registered in the resident's name, see Def Ex. 1 (Bligen Decl.) ¶ 8; Def.Ex. 3 (Johnson Decl.) ¶ 8, but under the terms of the lease the utility charges are included as part of the client' room and board payment to RHD. See Def.Ex. 1B.

All residents of RHD housing are bound by the house rules, which include the following: no drugs or alcohol, no loud music, residents must be dressed if outside their bedrooms between 8:30 a.m. and 10:00 p.m., and residents are to "keep the staff of Mandela apartments informed as to their whereabouts at all times." These rules are in the rental agreement the client signs with RHD. See Def.Ex. lB.

RHD employees handle the personal spending money of some clients. Fifteen dollars per week (Social Security Disability provides thirty dollars each month, which amount is supplemented by the county) is disbursed by the county case manager to an RHD staff member, and the RHD staff then disburses the money to the client as provided in the individual's treatment plan. For clients who can handle fifteen dollars at a time, the whole amount is given to them once a week; for individuals who cannot manage such a sum of money all at once, it is disbursed in three dollar increments over the course of the week, See Pl.Ex. 2 (Bligen Dep.) at 22-25. RHD maintains a custodial account for receipt of the clients' Social Security benefits. Often, RHD is made the payee of the Social Security checks. See Pl.Ex. 5 (Jackson Dep.) at 40-41.

To the extent they are physically and mentally able, the residents are responsible for maintenance and upkeep of the homes, cooking their own meals, and washing themselves and their own clothes. See Def.Ex. 1 (Bligen Decl.) ¶ 8; Def.Ex. 3 (Johnson Decl.) ¶ 8; Def.Ex. 16 (Richards Dep.) at 64. The residents choose the food they purchase and meals they eat on a given day, as well as the clothes they purchase and the outfits they wear on any given day. See Def.Ex. 1 (Bligen Decl.) ¶ 9; Def.Ex. 3 (Johnson Decl.) ¶ 9.

A set of keys is kept at each location for use by the RHD staff while on duty. The RHD staff must knock before entering. Each client has keys to his or her house if able to do so. See Def.Ex. 3 (Johnson Decl.) at 7. Only six out of the eleven clients in the Mandela program have keys to the houses. Only three out of the eleven residents are allowed, by RHD policy, to leave the location unattended. See Pl. Ex. 2 (Bligen Dep.) at 28.

RHD emphasizes several factors in arguing that the clients live in private homes, noting especially that the clients themselves decide whether they have housemates and, if so, with whom they share, and that they select the furnishings of their homes. It is true that the court in Terwilliger v. Home of Hope, Inc., 21 F. Supp.2d 1294 (N.D.Okla. 1998), considered these factors important in ruling that community living arrangements similar to the ones in RHD's programs were private homes. The present case, however, can be distinguished from Terwilliger in at least one crucial regard: the Terwilliger court considered very persuasive the fact that all of the clients had a possessory interest in their homes by owning them outright or leasing them directly from independent third parties. See id. at 1299-1300. Here, by contrast, all of the clients rent from RHD. More important than a particular factual difference is that, as the Terwilliger court correctly stated, the determination of whether the homes are private is made by "[c]onstruing the factors as a whole." Id. at 1300.

The conclusion to be drawn from all the above facts is that RHD runs these homes as part of an overall care program, and the residents live there as clients of the program. While it is true that RHD gives its clients the opportunity to make many choices within its limits, the fact remains that RHD is in charge of the homes from the time of the client's entry into the program and continues to be in charge throughout the client's residency. RHD either places the client into one of its already existing locations, or it limits and supervises the client's choice of a location. RHD rents the apartments and houses, while the clients pay monthly room and board fees that, in at least one case, do not cover the rent. Some of the residents do not even have keys to the homes, and most of them are not allowed to come and go as they please. The maintenance of the homes and the residents' activities in them are regulated by state and county laws and RHD's rules. The clients did not live in the homes before they became RHD clients, and they would not live in them but for their association with RHD.

It is true that this physical setting is different from an easy-to-spot institution consisting of dormitory-style wards, a cafeteria, and communal lounge areas, and it is true that the residents' daily activities are different than if they lived in such an institution. The setting is equally different, however, from an easy-to-spot private home. For example, in both Sandt v. Holden, 698 F. Supp. 64 (M.D.Pa. 1988), and Salyer v. Ohio Bureau of Workers' Compensation, 83 F.3d 784 (6th Cir. 1996) (both cases examining other aspects of the companion exemption), the families lived in their homes prior to and independent of their receipt of companion services. On the continuum between what is clearly an institution and what is clearly a private home, there certainly is a gray area. In fact, as "a middle step to independence," that is exactly what the RHD homes are intended to be during the transition from institutionalization to independent living. However gray the area is, though, the residences must be categorized as one or the other for the purposes of the companion exemption to the FLSA, and when all the factors regarding these homes are analyzed, they simply do not qualify as private. Therefore, the RHD residential advisors working there do not qualify for the companion exemption, and plaintiffs are covered by the FLSA.*fn6

Inclusion of Cafeteria Plan Contributions in the Regular Rate

The FLSA provides that an employee who works more than forty hours per week must be compensated for the additional hours at a rate at least one and one-half times the employee's regular rate. See 29 U.S.C. § 207(a)(1). "Regular rate" is defined in relevant part as

  all remuneration for employment paid
  to, or on behalf of, the employee, but
  shall not be deemed to include . . . contributions
  irrevocably made by an employer
  to a trustee or a third person
  pursuant to a bona fide plan for providing
  old-age, retirement, life, accident, or
  health insurance or similar benefits for

29 U.S.C. § 207(e)(4). The issue in this case — whether the contributions RHD makes to its benefits plan should be included in calculating the regular rate, thus requiring RHD to pay higher overtime wages than it does — turns on the apparently entirely novel legal question of whether RHD's benefit program is a bona fide plan within the meaning of the statute.

The Department of Labor regulations specify the conditions that a benefit plan must meet to qualify as a bona fide plan and thus qualify the employer's contributions for exclusion from the regular rate calculation. At issue here is the following requirement:

The plan must not give an employee the option to receive any part of the employer's contributions in cash instead of the benefits under the plan: Provided, however, [t]hat if a plan otherwise qualifie[s] as a bona fide benefit plan under section 7(e)(4) of the Act, it will still be regarded as a bona fide plan even though it provides, as an incidental part thereof, for the payment to an employee in cash of all or a part of the amount standing to his credit (i) at the time of the severance of the employment relation due to causes other than retirement, disability, or death, or (ii) upon proper termination of the plan, or (iii) under circumstances specified in the plan and not inconsistent with the general purposes of the plan to provide the benefits described in section 7(e)(4) of the Act.

29 C.F.R. § 778.215(a)(5).*fn7

The Fairshare Plan's Operation

RHD's benefits program is called the Fairshare Plan. It is set up as a cafeteria plan that allows employees to select the benefits they would like to receive from a menu including health insurance, a medical reimbursement account for themselves and/or their dependents, life insurance, long term disability insurance, and cash. See Pl.Ex. 2 (Taylor Decl.) ¶ 3. RHD makes a monthly contribution to each employee's Fairshare account in the amount of seven percent of the employee's base salary plus one hundred dollars. Stip. ¶ 7. Employees are permitted to designate part of their wages to go into their account to purchase benefits beyond what can be purchased for the amount deposited by RHD. See Def.Ex. 2 (Taylor Decl.) ¶ 4. Employees can elect to receive any part or all of RHD's monthly contribution in cash rather than use it to pay for benefits. See Def. Ex. 2A (Fairshare Plan) at 14 ("Each Participant may choose to receive all or part of his Fairshare Benefit Dollars as a cash option added to his paycheck. . . ."). The plan's cash option is in direct contravention of the regulation, so the Fairshare Plan can only be a bona fide plan if it fits within one of the regulation's exceptions.

RHD argues that its plan's cash option falls within the exception of the language quoted above. To come within the exception, the cash option must be (1) an incidental part of the plan, (2) available under circumstances specified in the plan, and (3) not inconsistent with the purpose of the plan to provide benefits. The Fairshare Plan's cash option fails each part of that test.

Incidental Part of the Plan

The plan does not treat the cash option as incidental; rather, it is presented as an integral part of the plan, coequal with the other benefits offered. See Def. Ex. 2A (Fairshare Plan) at 14. It does not make sense to call the availability of cash payment "incidental" when an employee can elect to receive all cash. For an employee who so elects, certainly the cash option is not an incidental part of his or her benefits package, indeed, it is the entire package.

Available Under Circumstances Specified by the Plan

The Fairshare Plan plainly provides as follows: "Coverage Options. Each Participant may choose to receive all or part of his Fairshare Benefit Dollars as a cash option added to his paycheck. . ." Def.Mot.Ex. 2A (Fairshare Plan) at 14. That language simply does not specify any circumstances under which the cash option is available; the implication is that the plan allows employees to elect the cash option under any and all circumstances. This does not comport with the plain requirement of the regulation.

RHD might be able to modify its plan to make it a bona fide plan exempted from inclusion in the regular rate by adding conditions to the availability of the cash option. Perhaps the plan could say cash is available for a limited period of time if an employee experiences a family emergency or change in family circumstances. Perhaps the plan could articulate a standard in accord with what RHD claims is the actual primary use of the cash option: when an RHD employee has no need for benefits because he or she is already fully covered by a spouse's plan.*fn8 If the plan listed any of these or other circumstances, this court would have to decide whether the circumstance qualified, a question which could be a nuanced and difficult one. The court does not offer any opinion on the validity of the hypothetical circumstances. The question would be whether a particular named circumstance would qualify under the statute. That question, however, is not presented here; presented instead is the much simpler question of whether a plan that lists no circumstances at all qualifies under exception (iii). Simply put, it does not.

Not Inconsistent with the Purpose of the Plan

RHD characterizes the purpose of its cafeteria plan as to provide "(1) a roughly equal level of benefits to all participants; and (2) the flexibility for each employee to choose the options from which they would most benefit." Def.Mot. at 27. Unfortunately for RHD's argument, the statute does not allow the employer the opportunity to name its plan's own purpose with which a cash payment option does not conflict; rather, the statute requires that the incidental cash payment be consistent with the "general purposes of the plan to provide the benefits described in section 7(e)(4) of the Act," which in turn prescribes the purpose of "providing old-age, retirement, life, accident, or health insurance or similar benefits for employees." 29 C.F.R. § 778.215(a)(5); 29 U.S.C. § 207(e)(4). If an employee uses the Fairshare program to supplement his or her monthly salary by seven percent plus one hundred dollars, thereby foregoing benefits, no part of the statutorily defined purpose is served; rather, it is thwarted. The plan's allowed circumstances of "any and all" are inconsistent with the prescribed purposes.

The Tax Code's Cafeteria Plan Provision

Defendant argues that the existence in the Internal Revenue Code (the IRC) of a section creating cafeteria plans should change the court's FLSA analysis. At 26 U.S.C. § 125, the Internal Revenue Code provides that amounts received by an employee under a cafeteria plan are not included in the employee's gross income. That section defines a cafeteria plan as a written plan in which all participants are employees and "the participants may choose among 2 or more benefits consisting of cash and qualified benefits." 26 U.S.C. § 125(d)(1). RHD has structured its plan according to this tax provision, including offering the cash option the statute allows.

RHD argues that the tax code and the FLSA are inconsistent and that it cannot he Congress's intent that the FLSA punish an employer for complying with the tax code by making it pay more overtime. RHD argues that the FLSA regulations were written many years before the IRS created the cafeteria plan provision, so the FLSA regulations should be read in light of and consistent with the newer tax law, instead of being read so as to create a situation that puts employers between the proverbial rock and a hard place.

This argument is unavailing, because the two statutes are not actually inconsistent. There is nothing inconsistent in telling employers that if they structure their benefit program to include an unlimited cash option, the contributions are not included in their employees' gross income, and the contributions are included in the regular rate calculation of the FLSA. Moreover, if limiting circumstances for the cash option were included in the plan, it could still qualify as a cafeteria plan under the IRC and qualify as a bona fide plan under the FLSA. Thus, the existence of the cafeteria plan provision in the tax code does nothing to alleviate the Fairshare Plan's violation of the governing FLSA regulation.*fn9

Inclusion of Bonuses in the Regular Rate

The FLSA's definition of regular rate includes an exception for bonuses:

  Sums paid in recognition of services performed
  during a given period [are not
  included in the regular rate] if . . . both
  the fact that payment is to be made and
  the amount of the payment are determined
  at the sole discretion of the employer
  at or near the end of the period
  and not pursuant to any prior contract,
  agreement, or promise causing the employee
  to expect such payments regularly . . .

29 U.S.C. § 207(e)(3). RHD argues that its bonuses are given at the discretion of the company and are not promised in advance, and are therefore excludable from the regular rate computation. Plaintiff's argue that RHD's bonus policy is formulated so that RHD has no discretion as to the amount of bonuses given, thus making the bonuses includable in the regular rate calculation.

RHD's written bonus policy, distributed to employees as part of the written corporate personnel policy from 1991 to 1998 reads as follows:

  Occasionally, if funds are available, bonuses
  may be granted. Bonuses are
  considered as [a] general reward to an
  entire program staff and must be applied
  consistently. That is, if bonuses
  are to be approved, they must be of
  equal dollar value to each employee and
  must meet all other stated guidelines
  for fairness. The dollar amount should
  be pro-rated for less than full-time or
  less than full-year service and must be
  limited to a maximum of $1,000.00 per
  employee. Bonus plans submitted for
  approval by a Unit Director may only
  exclude employees whose performance
  is sufficiently inadequate to warrant
  probation or is impending dismissal.
  Such exclusions must be documented
  and maintained in the employee's personnel

See Pl.Memo. at 38-39. The current version (presumably put in-effect after the start of this litigation) is similar:

    Program bonuses . . . may be considered
  when there is evidence of unexpended
  budgeted program funds. It is
  the policy of RHD that any program or
  group of programs which generate funds
  available to be used for bonuses must
  distribute such funds equally to all members
  of the group(s). To participate in
  bonuses, employees must be regularly
  scheduled staff, meeting the
  standards/expectation of the position, and
  actively employed by RUD at the time
  of bonus distribution. Bonus amounts
  are pro-rated for less than full time
  and/or full year employment and may
  have additional stipulations attached as
  determined by the program(s) involved.

    All bonus plans must have the prior
  approval of the Hub budget and program
  managers. Such bonuses can be
  declared at any time in a year but are
  most likely to occur at the end of a
  fiscal/contract year. No benefit dollars
  are paid on bonuses. Bonuses will not
  be used to calculate rate of pay.

See Pl.Ex. 23 (policy in effect May 1, 1998) ¶ 2. RHD's Human Resources Director explains that the bonuses are given in a way that satisfies the statute: "RHD has absolute discretion to determine if bonuses are to be paid and, if so, how much those bonuses will be. RHD has never promised its employees a bonus or contractually agreed to pay bonuses." Def.Ex. 2 (Taylor Decl.) ¶ 7. Plaintiffs make three arguments denying that the bonuses satisfy the statute, but none succeeds.

Plaintiffs argue that this policy on its face created a reasonable expectation by the employees that they would and will receive annual bonuses, because it says that bonuses will be paid "to an entire program's staff." This argument is unavailing, as both policies explicitly state that bonuses will be given only if funds are available. In fact, the policy does not even require that bonuses be given even when funds are available; it remains at RHD's discretion. The fact that the policy requires that bonuses be given to all staff if given at all does not require, nor even suggest, that bonuses will in fact be given.

Plaintiffs next argue that the policy on its face abandons RHD's discretion as to the amount of the future bonuses. This argument is also unavailing: Although the earlier policy does set a maximum amount, and both policies include a pro-rating formula and a requirement that bonuses be given equally to all staff members, neither policy sets a certain amount for the possible bonuses. Cf. 29 C.F.R. § 778.211(b) (an employer who promises sales employees a bonus of "one cent for each item sold" has abandoned discretion with regard to the amount of the bonus).

Plaintiffs lastly contend that RHD's bonus policy is non-discretionary on its face because it creates a bonus system that fits the following description:

  Attendance bonuses, individual or group
  production bonuses, bonuses for quality
  and accuracy of work, bonuses contingent
  upon the employee's continuing in
  employment until the time the payment
  is to be made and the like are in [the]

  category [of promised bonuses]. They
  must be included in the regular rate of

29 C.F.R. § 778.211(c). Once again, this argument is unavailing, because what the regulation means is that a bonus promised conditionally is promised all the same. Here, the policy's requirements that an employee be employed at the time of bonus distribution and be performing satisfactorily are not conditions placed on an otherwise-promised bonus, because no bonus is promised.

The plaintiffs are not employees exempted from FLSA coverage by the companion exemption, so RHD's overtime payment must comply with FLSA's rules. The employer's contributions to the Fairshare Plan must be included in calculating the regular rate, because the plan's cash option defeats its status as a bona fide plan. RHD's bonus payments are excludable from the regular rate calculation because they are properly discretionary. For these reasons, defendant's summary judgment motion will be granted as to the bonus issue and otherwise denied. An appropriate Order follows.

AND NOW, this 8th day of January, 1999, upon consideration of the Motion of Defendant for Summary Judgment, and the response thereto, it is hereby ORDERED that the motion is GRANTED in part and DENIED in part as described in the foregoing Memorandum.

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Ram Clutches Powergrip Clutch Set 98949

12 x 1 1/8-10 Spline

Pricing: $557.44

Ram Clutches - Powergrip Clutch Set P/N 98949 Features:

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Product Documents:

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  • 98949
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  • 809009370455
  • Ram Clutches
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  • 26.0 lbs.
  • W13.7500” x H4.0000” x L14.5000”

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Mr. Gasket Carburetor Linkage Components 3810G

Ball Joint - Standard - 2 pc.

Pricing: $16.78

Mr. Gasket - Carburetor Linkage Components P/N 3810G Features:

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  • 3810G
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  • 0.6 lbs.
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Apple MacBook Pro MF839 LL/A Core i5 128GB SSD 13.3" (2015)

Availability: In stock

Rs 124,999.00

Quick Overview

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Processor Type Intel Core i5-5257u (Broadwell - 2 Cores - 4 Threads)
Processor Speed 2.7 GHz Turbo Boost 3.1 GHz (5th Generation)
Installed RAM 08 GB
Type of memory DDR3L
Hard drive size 128GB PCIe-Based Flash Storage
Hard drive speed -
Optical Drive No
Type of optical drive -
Internal/External External (Optional)
Type of harddrive Solid State Drive
Card Reader Yes
Type of memory cards SDXC
Dedicated graphics No
Graphics memory Intel Iris Graphics 6100
Type of graphics memory Shared
Switchable graphics No
Graphics processor Intel
Maximum shared graphics -
Aspect ratio 16:9
Backlight LED
Screen size 13.3" HD LED
Screen surface HD LED
Screen resolution 2560x1600 pixels
Touchscreen No
Colors Silver
Dimensions (WxHxD) 12.3 x 0.7 x 8.6" / 31.2 x 1.8 x 21.8 cm
Weight 3.46 lb / 1.57 kg
Fingerprint Reader No
Numeric keyboard No
Backlit keyboard Yes
3G No
Bluetooth Yes
Type of bluetooth Bluetooth 4.0
Speed 10/100/1000 Mbps Gigabit Ethernet (RJ-45) via optional cable
Modem No
Wireless/Wifi Yes
Type 802.11a/b/g/n/ac
Infrared No
DVI out No
USB 2.0 No
USB 3.0 2
USB Ports (Total) 2
TV-out No
Serial port No
S/PDIF out No
Parallel port No
Microphone input 1/8" (3.5 mm) Headphone/Microphone Combo Jack
Headphone output 1/8" (3.5 mm) Headphone/Microphone Combo Jack
Firewire No
Number of outputs -
HDMI version No
VGA Output No
Battery life Up to 9 Hours per Charge
Battery type Built-In Lithium-Polymer
No of cells 71 WH
Camera Yes
No. of effective pixels 720p HD Webcamera
Remote Control No
32/64-bit OS 64 Bit
Operating system (Primary) OS X Yosemite
OS (Secondary) -
Included software -
Manual www.apple.com
Product page www.apple.com
Warranty 1 Year Apple International Warranty


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Chapter:Party Appetizers and Snacks Recipes
Section:Raw Beef: Steak Tartare
Recipe:Steak Tartare
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Steak Tartare
1 lb. sirloin or tenderloin steak, freshly ground twice
1/2 c chopped onion or green onion
1 tbsp ice water
Egg yolks
Salt and freshly ground pepper
Garnishes: chopped onion, capers, freshly grated horseradish, and chopped

Lightly mix the steak with the chopped onion and water. (Water makes it
fluffy.) Pile on individual plates. Make an indentation in the center of
the meat and slip in a raw egg yolk. Sprinkle with salt and pepper. Serve
with garnishes. Makes 4 servings.

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The focusing illusion was splendidly captured by a pair of questions asked of college students by researcher Norbert Schwartz and others: “How happy are you?” and “How many dates did you have last month?” The research team discovered that people having a lot of dates also say they’re feeling very happy – but only if asked about the dates first. If the happiness question comes first, there’s a far smaller correlation between the answers. Those students asked initially about their love lives continued to think about them when pondering their happiness. Otherwise they might have been worrying about money, career or exams.

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Giardiasis is an enteric unwellness that affects the organic process tract, is caused by a microscopic appendage protozoan being titled Giardia lamblia( besides named as Giardia duodenalis and Giardia intestinalis) that affects the epithelial duct geographical region.It is a reasonably basic rationale of diarrhoeal illness, belching, gas and cramps. Although these symptoms are immensely unpleasant, the disorder isn't mostly self-destructive.The organism is allied itself to the inside layer of the minuscule insides in humans, wherever it modify the body's incorporation of carbohydrates & fats from digestible meals. Once an sensual or individual has been contaminated beside Giardia intestinalis , the parasite exists in the bowel and is moved in the seat. It can able to untaped facade the thing and in the environment for longest present time because the parasite is protected by an outside coat.

Giardia contamination has get approved as one of the record traditionally come about waterborne sickness . Infection occurs by the bodily process of cysts, an unreactive means of Giardia lamblia, in infected water, food, or by the guardianship or fomites.

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Giardiasis is painless to find by cocktail ruined binary compound . Many animals have Giardia in their excreta and may push this being into rivers, streams and springs in country areas wherever binary compound supplies go infected with raw sewage. Giardia can be transmitted by unintended putting something into your oral cavity that has tainted near stool of a someone or animal gangrenous with Giardia ,swallowing unpaid liquid in watery pools, hot tubs, jacuzzis, fountains, lakes, rivers, springs, ponds, or streams that can be festering near sewage or stool from human race or animals,using underdone nutrient fouled near Giardia .

Giardia unhealthiness is occur due to the organism named Giardia lamblia. It appears in two types.

  • Trophozoite:It is appears in busy be .

  • Cyst: It is be in an redundant sort.

Cysts are obligated for feat the signs and symptoms of protozoal infection.It can on stage for long periods external the organic structure and can be there respective months in bleak sea. Infection appears by the body process of cysts in impure water, food, or by the feculent spoken way. In the article viscus acid triggers the pathology & the pathology releases trophozoites (single lump produces 2 trophozoites). Trophozoites enduring in the hole of a cannular proximal teeny weeny internal organ where they can confidently attached to the membrane by a dorsoventral suction disc .

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The symptoms of protozoal infection may occur from 3 to 25 days after greenhouse gasses but across the world occurs inwardly 10 years. Giardiasis can bring a aggregation of symptoms such as as abdominal cramps, overabundance amounts of enteral gas,an expanded stomach from the gas , craving loss , anxious sickness and forcing out ,headache ,flatulence , puffed  sensation , smooth stools that incline to soar .These revolution may incentive weight loss and desiccation.

People open to giardia may have a feeling placid or obscure diarrhea, or in quite a few cases no symptoms at all. Mild febricity is seldom instant.

Giardiasis impacts the body's propensity to absorb fats from the food, so the diarrhoea have unabsorbed fats. It technique that the diarrhoea floats, is shiny, and smells thoroughly bad. Some modern world group will have entrenched looseness of the bowels up to various weeks or months, beside recurring weight loss.

Giardiasis is mostly well with a medicine titled Flagyl an antibiotics. It's conventionally understood cardinal modern times a day for 5 to 10 days. Side personal property may list a sickness.It is advisable not to go on the town any manner of street drug ,if Flagyl is mistreatment. This drug is not nonarbitrary in the premature stages of pregnancy,because few of the drugs used to medicinal drug the pollution can be harmful to the vertebrate.

Albenzazole, antiprotozoal or furizolidone are largely advisable as a bactericide to nutriment protozoal infection.But cross by tenderloin few hindrance should be interpreted such as as discreetly clean safekeeping meticulously after bathroom visits,carefully dispose of sewage wastelands so they don't colly side sea or groundwater,avoid intense unprocessed river from springs, streams or lakes.

A child near symptom from protozoal infection may suffer spare water in the stool and turn dehydrated. It is advisable to drinks full of fluids - but no caffeinated beverages, they dried up the article quicker.

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Wednesday, February 8, 2012

Mohegan Sun Wine Fest: The Wines

Though I would have preferred more diversity in the wine selections at the Mohegan Sun Wine Fest Grand Tasting, I found some very good wines and I will share a sampling of my favorites below. Obviously, I did not taste every wine at the event so there could have been other worthy wines that I simply did not get the opportunity to sample. If you attended this event, and tasted some good wines that I have not mentioned, feel free to add your thoughts to the Comments.

The labels are eye-catching, especially if you are a music lover, though you might suspect they are mere gimmicks. The Wines That Rock, founded in 2009, is a collaboration between RZO Music, Inc. and the Mendocino Wine Company, and is "...all about pairing wine & music."  The Mendocino Wine Co. is very environmentally friendly, with sustainable farming, green power through solar & wind, eco-friendly packaging, carbon neutrality and more.

There are currently five Wines That Rock, including wines for Woodstock, Pink Floyd, The Rolling Stone, The Police and The Grateful Dead. If you check their website, you can see the inspirations for these wines, the reasons why the music and wine are supposed to work well together. I have tasted several of these wines before, which generally retail around $15 a bottle, and they are generally good wines for the money and not merely a marketing gimmick.

Their newest release, in partnership with Grateful Dead Productions and Rhino Entertainment is the 2009 Grateful Dead "Steal Your Face," a  red blend. Their website states: "To capture the essence of the live energy of the Grateful Dead’s Steal Your Face, Winemaker Mark Beaman chose to meld several varieties into one. Just as the band members would segue through various musical styles, this wines far reaching flavors melt seamlessly from one to the next, blending Syrah, Petite Sirah, Zinfandel & Grenache. In honor of the band’s famous improvisational concerts that have brought joy to so many, this wine celebrates Mendocino County’s bounty of diversity and freedom of experimentation."

I enjoyed this muscular wine, with its prominent blend of black and red fruit, a spicy backbone and strong tannins. It had just enough complexity to make it interesting, especially at its price point. It is an easy drinking wine, excellent for BBQ or hearty meat dishes, or something to warm you on a chilly winter evening. As I am not a big Grateful Dead fan, I can't really say how this wine compares to their music. But maybe my friend, and devoted Deadhead, Adam of Wine Zag can comment on that.

I found two Spanish Albarinos, from Rias Baixas, each offering its own unique style. The 2010 Serra da Estrela Albarino ($16.99) is from a winery established in 2000, located  in the Condado do Tea subzone of Rias Baixas on the northern slopes of the Miño river. The chief winemaker is a woman, Cristina Mantilla, a common occurrence in Rias Baixas wineries. This Albarino sees no oak, and is crisp and clean, with more restrained fruit tastes, apple, pear and apricot. Its minerality is more prominent, kind of a flintiness, and it has a fairly lengthy and pleasing finish. A nice choice with seafood, from oysters to shrimp.

The 2010 Salneval Albarino ($11.99) is produced by the Adega Condes de Albarei winery, founded in 1988 and located in the O Salnès valley. It is a cooperative of 362 grower/owners, equipped with advanced winery technology. Again, this Albarino was crisp and clean, but its fruit flavors were much more powerful, a delightful melange of peach, pear and melon. Its minerality was more subtle, along with hints of honey and spice. It had a fuller mouthfeel, more voluptuous, than the other Albarino, and I would enjoy this on its own or paired with food, maybe something with a little spicy heat, like some Thai. If you are not drinking Albarino, then go find some to taste.

The 2007 Jose Maria Da Fonseca Periquita Reserva ($16.99) is a Portuguese red blend of 50% Castelao, 30% Touriga Nacional, and 20% Touriga Franca. It is aged for about eight months in new and used oak and has an alcohol content of 13.2%. A light red color and an alluring fruity nose with a touch of exotic spice. The flavors include blueberry, raspberry, black cherry, vanilla and spice. Easy drinking, delicious, and another reason to embrace Portuguese wines.

One of my overall favorite wines of the Expo was the 2005 Terre Rare Carignano del Sulcis Riserva ($14.99) from the Sella & Mosca winery in Sardinia. The winery was established in 1899 by two Piedmontese businessmen and it is currently owned by Campari. This wine is made from 100% Carignan, is aged for three years in French barriques and has an alcohol content of 13.5%. I found this to be a complex and interesting wine, a stunner at this price point. Spicy and bold, with delicious black fruit flavors, vanilla, a silky mouthfeel and hints of earthiness. I would pair this with pork, venison or lamb, or just savor on its own. This is a wine likely to end up on one of my Favorites List of 2012.

The Saintsbury Vineyard has long been one of my favorite California producers of Pinot Noir. The winery founders, Dick Ward and Dave Graves, made their first Saintsbury wine in 1979 and released their first Pinot Noir in 1981. Based in the Carneros region, they currently produce about 40,000 cases annually. Over the course of the Expo weekend, they poured five different wines, including four Pinot Noirs.

The 2009 Carneros Chardonnay ($21.99) is unfiltered, spends 8 months in French oak (20% new), and undergoes malolactic fermentation. The bottle is under a screwcap, and presents a tasty white wine with restrained fruit, spice and some minerality. This is a good example of how oak can enhance a Chardonnay, rather than drown it.

The 2008 Carneros Pinot Noir ($27.99) is a good starting point for their portfolio of Pinot Noirs. It might be their most muscular Pinot, with bright red fruit, a spicy backbone and hints of earthiness. A delicious taste, nicely balanced and a pleasing finish. Over the years, I have drank many bottles of this Carneros Pinot. The 2008 Carneros Pinot Noir, Lee Vineyard is a single vineyard that spends about ten months in French oak, about 29% new. It has less muscle than the regular Carneros though the fruit is still bright and there is plenty of spice notes.

Onto their more elegant offerings. The 2005 Carneros Pinot Noir, Stanley Ranch is an older vintage as the current one for this wine is 2008. This was a more elegant wine, very Burgundian in nature, which subtle red fruit flavors, plenty of spice notes and a strong backbone of earthiness. Its lingering finish was very satisfying, and this is certainly a wine to slowly savor, enjoying its complexity and style. A sublime wine evidencing the skill of Saintsbury. The 2007 Carneros Pinot Noir, Brown Ranch is equally as excellent, an elegant experience with less earthiness and spice. There is much subtlety in its complexity, reminding me in that respect of a fine Daiginjo sake. These are examples of some of the best California Pinot Noirs out there.

A squid picture on the label? And even a name based on squid?  Yes, it is catchy and kind of cool but is it a mere gimmick?  The 2011 Calamares Vinho Verde ($7-$8) is a Portuguese blend of 40% Arinto, 30% Trajudura and 30% Loureiro with an alcohol content of only 9%. The wine is from the single estate of Quinta da Devesa, and its name is intended to "...create an association with the unpretentious and relaxed nature of the region and its wines." This is an easy quaffer, a wine to drink and enjoy, without any need to think about it. Slightly effervescent, it has plenty of acidity and flavors of grapefruit and lemon, with some mild mineral notes. For under $10, this is a good choice, and pair it with light chicken dishes, seafood and maybe even cheese.

Moving onto Spain, I enjoyed the 2009 Tarima Hill ($15), produced by Bodegas Volver, S.L. and from the Alicante region. It is made from 100% Monastrell, the vines aged from 25-35 years, and the wine spends about 20 months in French oak. This is actually the first vintage of this wine. This is a big and bold wine, with lush ripe plum and blueberry flavors, strong tannins and hints of vanilla, cinnamon and raisins. It calls out to be paired with a big steak, and offers a good taste for the price.

Next up, a couple Grüner Veltliners from the same winery, Eder, which possesses 12 hectares of vineyards, in the town of Mautern in the Wachau region of Austria, and produces only about 20,000 bottles annually.These Grüners were very different from each other. The 2009 Eder Grüner Veltliner was very aromatic with prominent fruit flavors and good acidity. A relatively simple, easy drinking and fun quaffer. But the 2006 Eder Raubern Single Vineyard Grüner Veltliner (under $20) was anything but simple. The melange of flavors fascinated me with their complexity, with plenty of spice and floral notes, yet still with noticeable stone fruit components. Despite its age, this seemed still very fresh and it was a clear winner, sure to please any wine lover.

I found a couple nice Ports too. The 2001 Warre's Late Bottled Vintage was very approachable with plenty of cherry and plum fruit flavors, subtle spice and a smooth mouth feel. It was more an elegant style, with a lengthy and pleasing finish. The Ferreira Dona Antonia Reserve Porto was another elegant wine but its berry flavors were more restrained, and accompanied by tastes of dried fruit, nuts, spice and floral elements. It seemed more complex than the Warre's and was also smooth and very satisfying on the finish. Both Ports were enjoyable, and your choice of the two will depend on your personal preferences.

Australian wine has taken a hit in the last couple years, a backlash from wine lovers tired of overly fruity, high alcohol, and huge red wines. There is some truth there, that Australia produced a significant number of wines that met those qualifications, but there are also some very good wines coming out of this region. They just seem to get far less publicity and maybe it is time for wine lovers to return to Australia. A good starting point may be the Shingleback Winery, located in the McLaren Vale of Australia.

Kym & John Davey chose to develop a family estate that had been established in 1957. In 1998, they released their first wine, the Shingleback Shiraz, and their stated goal was to "produce affordable, quality wines that express the true character of McLaren Vale." I tasted their 2006 Shingleback Shiraz and was impressed with what I tasted. It certainly was not a fruit bomb and was a far more elegant and restrained wine, with plenty of complexity and a pleasant taste of black cherry, blueberry and raspberry combined with vanilla, subtle spice and even hints of chocolate on the finish. Good structure, nice balance, and pure delicious. It makes me want to further explore Shingleback wines, as well as seek out more of these type of Australian wines.

With the Wine Blogger's Conference coming to Portland, Oregon in August, plenty of attention will be coming to Oregon wineries. At the Expo, I encountered Jim Bernau, the founder of Willamette Valley Vineyards, who purchased the vineyard site in 1983 and planted Pinot Noir, Chardonnay and Pinot Gris. The winery and cellar are carved into an ancient volcanic flow and the soil is red from its high iron content. It is claimed that this soil is similar to "...the red clay soil found in the Grand Cru Pinot Noir vineyards of Romaneé-st-Vivant in Burgundy,.."  I cannot comment on that but I can state that their wines are impressive and I hope to visit their winery in August.

Their 2009 Pinot Gris ($17.99) was stainless steel fermented and permitted to sure-lee age for a time. It is crisp and clean with bright flavors of green apple, melon and pear with a slight herbal component. Delicious, refreshing and moderately complex. The 2009 Pinot Noir ($29.99), which undergoes about 11 months of French oak (22% new), is a delicious example of Oregon Pinot Noir. Ripe red fruit, hints of spice and orange peel, and a lengthy, satisfying finish. It is a more elegant style, offering a nice balance and good complexity.

The stunner though was their 2009 Estate Pinot Noir ($43.99), which is subtle and seductive, an elegant and complex Pinot which is sure to impress. The melange of flavors ranges from bright cherry to ripe plum, from cinnamon to black pepper. You need to slowly sip and savor this wine, to perceive all of the diverse flavors within. Well balanced, this wine provides an alluring finish that seems to caress your palate with silk, lingering long within your mouth. A killer wine, I highly recommend this one.

Adam Japko said...

The issue wine being like music is beyond esoteric to me. But, if you boil it down to the ways music creates connection player and listener and the ways wine creates connection between drinker and wine's terroir and winemaker, you might see a linkage. I remember Dead shows where I swore the band was playing just for me, hitting the notes that are uniquely mine to enjoy. I have had that experience with wine. This Dead wine is not that, but I applaud the creators for attempting to connect the style of the Dead with wine.

Richard Auffrey said...

Thanks Adam for answering my question.

I can understand how wine might bring to mind a certain musician or band. In the Drops of God wine comic, the main character compares a certain wine to the music of Queen and provides and explanation of how they connect to him. It is certainly a very different way of looking at a wine, different from the usual descriptors of fruit and spice.


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PBS Kids GO! It's My Life
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What's your nickname, and how did you get it? Do you like it or hate it?

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Nicknames: Good Nicknames A lot of people have nicknames that make them feel really good about themselves. These are usually nicknames that have to do with popularity, smarts, athletic ability, or a unique personality trait. Nicknames like Whiz Kid and Wonder Girl can be a way
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for kids to show admiration or respect, and people who have these types of nicknames like these usually like them a lot.

In your school, most of the kids who have these nicknames are probably the ones who are really good at sports. Sports nicknames are a tradition that has been around for a long time. Take these famous examples:

Wayne Gretzky When people saw Wayne Gretzky play hockey, they knew that they were watching one of the game's all-time best players. This led to his incredible nickname of The Great One.

Baseball player Pete Rose always seemed to go the extra mile and work a little harder than the other players. Because of this, fans and players began to call him Charlie Hustle.

Football great Walter Payton made every play look so perfect and easy that people started calling him Sweetness.

People made up these nicknames as an easy way to sum up what they loved about their favorite athletes. But it's not just sports stars who end up with great nicknames.

Singer Frank Sinatra was so popular for so long that he wound up with three nicknames: The Voice, The Chairman of the Board, and Ol' Blue Eyes.

Of course, we don't always get our nicknames from people who admire us. Next up: Negative Nicknames.

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Site Key Topics Guide

Elements of Peace Obstacles to Peace
Human Psychology and Peace The Nature of Reality
The Climate Change Scam The Science of Global Warming

What Are We to Make of "Nature's" New Climate Journal?

Future generations will certainly think people of today have gone cold stark raving loony. "Nature" used to be a highly respected scientific journal. Their recent behaviour in the "climate change" arena has trashed their reputation, possibly for good.

Wattsupwiththat brings us the news that Nature is about to put out a special journal to be called "Nature Climate Change". About the list of climate blogs Nature acknowledges, Anthony Watts writes:

I note RealClimate, Climate Progress, Stoat (William Connolley of Wiki fame), and even the paid Hoggan public relations firm “DeSmog Blog” are listed.

I reckon that skeptical sites like WUWT don’t rate with Nature, even though we have more traffic and reach than those blogs. I suppose that speaks to the tone of this new journal before it is even published.

What caught my notice, though, was this little gem in "Nature's" instructions to authors:

Understanding the Earth’s changing climate, and its consequences, is a scientific challenge of enormous importance to society. Nature Climate Change is a monthly journal dedicated to publishing the most significant and cutting-edge research on the impacts of global climate change and its implications for the economy, policy and the world at large.

I have put these two sentences in different colours because they have nothing to do with each other. Did you spot that? Very, very 'nicely' done - if you are more interested in propaganda than truth, that is.

Sentence 1 tells us the importance of understanding the Earth's climate. "A scientific challenge of enormous importance" they say. Sentence 2 tells us that this journal has nothing at all to do with understanding the Earths climate!

The journal is all about the impacts and implications of "climate change", and is not concerned with understanding the Earth's climate in any way, shape or form.

Did I read that wrongly? Am I being too paranoid about a minor slip of the keyboard? Apparently not, for they tell us this explicitly later on, no doubt hoping that by then you will have forgotten about the enormous importance of understanding the Earth's climate:

Nature Climate Change will publish cutting-edge research on the science of contemporary climate change, its impacts, and the wider implications for the economy, society and policy. Thus, while we certainly appreciate the importance of palaeoclimate research in its own right, we can only consider for publication palaeoclimate studies that shed significant new light on the nature, underlying causes or impacts of current climate change.

Thus the journal will focus on social, economic, and policy issues (which is not 'hard' science in any way, certainly not in any alignment with the meaning of the word "nature" after which they name their journal). At the very most, papers about actual science will only be considered if they limit themselves to the current climatic blip on the Earth's climate timeline, which is minor compared even with temperatures 1,000 and 2,000 years ago, and utterly insignificant compared with the vast range of climates the planet has undergone, ranging from oceans warmer than body heat to a planet frozen solid.

What meaningful understanding of Earth's climate can possibly be published if it limits itself to that mandate?

Would we be unreasonable if we assumed that this 'journal' is just another propaganda piece designed to showcase hairy scary climate alarms about disasters that 'possibly' 'could' happen, and that 'are consistent with' global warming?

Let me put my question a little bit plainer: "Nature", just how downright drop-dead flat out stupid do you think we are?

What is happening, both in this specific case and more widely, is that the world is gradually constructing a huge infrastructure of laws, policies, beliefs, institutions, publications, and more, aligned to the religious belief in the demon evil of the life-giving molecule, carbon dioxide. Each brick in this edifice protects itself from any confrontation with truth (in the case of "Nature Climate Change", by insulating itself from any juxtaposition of their fantasy contents with real science about the Earth and its climatic history).

Other ways of avoiding meeting the truth we have seen: Al Gore's refusal to allow journalists in his speeches, and his refusal to debate Lord Monckton; the pretence that "the science is settled" (meaning they simply ignore truth when it tries to batter its way into their minds); the deletion of emails at CRU; the refusal to obey freedom of information requests; and most recently, the BBC's disgraceful scurrilous program against skeptics. (Funny that, once upon a time, kids, I remember when scientists were supposed to be skeptics.)

We live in dangerous times. I believe in the importance of religion and I believe in God, but I also know that no religion should control the state or control our lives. The new environmentalist religion is gaining traction, mainly, because people haven't understood that it is a religion, and it is not science. We face a repeat of the dark ages, of heresy and witch trials, of a world unable to drag itself out of obscurantism; and all will be dressed up as science, while the real scientists are persecuted and driven underground. Ours may be the final generation that still has the power to stop a 500-year new dark age in its tracks. Will we rise to the challenge?

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