On March 20, 2003, Governor Rendell signed Executive Order 2003-2 entitled "Agricultural Land Preservation Policy." The Governor's Order on agricultural land preservation is the first issued by a Governor since 1997 and reaffirms the executive branch's dedication to preserving quality land for agriculture. The Order lays out a new priority for preservation of agricultural land and directs the Agricultural Condemnation Approval Board ("ALCAB") and other agencies under executive control to give priority status to preservation of agricultural and farm lands in accordance with the ranking system.

Executive Order 2003-2 is only the latest step taken toward the protection of agriculture in our area. The following laws are all designed to protect and sustain agriculture as a public resource and a private way of life in our Commonwealth:

Agricultural Security Area Law (3 P.S. §901)

The ASA law allows farmers and landowners to protect their land and farm operations from legal challenges. The regulations of the ASA law provides three basic protections to landowners. First, land enrolled within the ASA program are protected from nuisance suits by the right-to-farm law (described below). Second, land in the ASA is eligible to be enrolled in the state conservation easement program. Third, a special state board called the Agricultural Lands Condemnation Approval Board (ALCAB) is set up by the ASA law to serve a single purpose: additional protection to farmland enrolled in an ASA from condemnation actions.

The ASA law is of very importance in protection of farmland in a modern setting. Participation in the ASA program has been described of as having no downsides; the protections offered to landowners are all for their benefit, are completely voluntary, and participation in the program can be withdrawn at any time. The ASA law is scheduled to be revised in 2003.

Clean and Green Law (Pennsylvania Farmland and Forrest Land Assessment Act of 1974)

Clean and green provides preferential tax assessment of enrolled agricultural use land. There are also classifications for forest reserve land and "agricultural reserve land," intended to provide preferential tax valuation to property used as agriculture and to encourage that that property remains in that use. The preferential tax treatment is withdrawn when the use is terminated, and the landowner at that time must reimburse the government for the previous "rollback tax" with interest.

Right-To-Farm Law

This law provides general limited protections to "normal agricultural operations" from nuisance suits.

The above tools combine to provide farmers and landowners with greater protection from the pressures of development than has ever been available in the past. As a farmer or landowner, you should be aware of all of the above tools in order to protect yourself and preserve your farmland. If you have any questions about conservation easements, ASA enrollment, or Clean and Green assessment, contact your CGA Law Firm.

There is no limitation on the value of property that can qualify for the marital deduction. By transferring sufficient assets to the surviving spouse in the proper manner, estate tax liability upon the first spouse's death can be completely avoided.

At first view, the estate tax marital deduction may seem to be a government giveaway. It is not. The advantage afforded is not the total avoidance of estate tax on the transferred property but, rather, the deferral of such tax. The marital deduction requires that the transfer of assets to the surviving spouse be made in such a way that those assets are exposed to estate tax liability in the surviving spouse's estate.

The obvious advantage of deferring the estate tax liability is that the surviving spouse will have the use of the tax dollars that would otherwise have been paid to satisfy the tax liability of the first spouse's estate. The deferral of tax liability also postpones the possible need to sell off assets that the surviving spouse might wish to preserve in order to obtain funds to satisfy the tax liability.

Transfer by Will

A key decision is the selection of the type of transfer to be made to the surviving spouse. The simplest form of transfer that qualifies is the outright transfer of assets by will. The problem with such a transfer is that it saddles the surviving spouse with the responsibility of managing the assets and also exposes him or her to possible pressures from relatives, creditors, or charities to transfer the property for their benefit.

Transfer by Trust

The marital deduction law permits, with no loss of the deduction, the transfer to the surviving spouse in trust. There are two basic types of trusts that have become the standard means for taking advantage of the deduction without burdening the surviving spouse with the problems of outright ownership of the first spouse's estate.

The first type of trust is known as a "power of appointment trust." The property is placed in trust under the will, giving the surviving spouse a life interest in the income generated by the trust and a power to give the assets in question to anyone, including to himself or herself or to his or her estate. This power can be restricted so as to be exercisable by the surviving spouse only by will and still qualify for the marital deduction.

The second type of trust, rather than giving the surviving spouse the power to ultimately dispose of the assets, permits the decedent spouse to designate the ultimate recipients of the property qualifying for the marital deduction. This trust is known as the Qualified Terminable Interest Property (QTIP) trust. The surviving spouse must receive a lifetime income interest in the property. No one other than the surviving spouse may have any rights in the trust assets during the surviving spouse's lifetime. The decedent spouse's personal representative must elect QTIP treatment on the estate return. The crucial feature of the QTIP trust is that the decedent spouse retains the ability to control the course of ownership of the assets qualifying for the marital deduction.

Coordination with the Lifetime Credit

It has become standard estate planning practice to coordinate the estate tax marital deduction with the unified credit against the estate tax. The unified credit against the federal estate tax allows an individual to pass a certain amount of assets free from estate tax liability regardless of the identity of the recipients. For decedents who have died in 2002 or who die in 2003, that amount is $1 million; for decedents dying in 2004 and 2005, the amount is $1,500,000; for those dying in 2006 to 2008, the amount that can pass tax-free is $2,000,000; and for 2009, the amount is $3,500,000. In a will, the amount allowed to pass tax-free is normally transferred under what is known as a "credit shelter" or "by-pass" trust. Then, the transfer under the marital deduction rules is made so as to prevent the taxation of the remaining assets.

Clearly, in the case of a married couple owning sufficient assets to make estate taxation a possibility, estate planning must take into account the marital deduction rules and the associated tax savings. Given the complex nature of the many rules involved, you should always seek the guidance of a qualified attorney for any estate planning needs.

While attending York College, Andrew served all four years in student government and was elected president of his Senior Class. Andrew earned departmental honors in Political Science and was awarded the William Kain Good Citizenship award for his service to the College and community. Andrew currently serves as Vice President of the York College Alumni Board of Directors.

Andrew's previous legal experience includes work at the Pennsylvania Securities Commission in their Enforcement and Compliance Division in Harrisburg, PA and an internship with the Pennsylvania Public Utilities Commission. He is a member or the York County Bar Association, Pennsylvania Bar Association and American Bar Association. Andrew brings experience and knowledge in business, securities and technology issue to CGA.

Age Discrimination in Employment

The ADEA takes into account that sometimes there is a correlation between age and the ability to fulfill the requirements of a job, and that even older workers must comply with employers' rules and requirements that have nothing to do with age. An employer does not violate the ADEA if it takes an otherwise prohibited action where age is a "bona fide occupational qualification" necessary to the operation of a particular business. Nor is it a violation to differentiate among employees based on reasonable factors other than age or to fire or discipline an employee for good cause.

Before suing in court, an aggrieved person first must allege unlawful discrimination in a charge filed with the Equal Employment Opportunity Commission (EEOC) and then wait 60 days to allow the EEOC an opportunity to resolve the dispute informally before taking further legal action. Court remedies include injunctions (court orders stopping a discriminatory practice), compelled employment, promotions, reinstatement with back pay and lost benefits, and an award for attorney's fees and costs of bringing the suit. If a court finds that an employer's violation of the ADEA was willful, it may also award liquidated damages equal to the out-of-pocket monetary losses of the plaintiff.

It is not essential to an ADEA lawsuit that there be a "smoking gun" in the plaintiff's favor in the form of derogatory age-based comments about older employees. In fact, remarks of that kind will not support liability if they have no connection to the challenged employment decision. In a recent lawsuit brought by an on-air television reporter who was fired, a boss's comment that "old people should die" was an insignificant stray remark because it was made about the boss's own father. On the other hand, it was very helpful to the plaintiff's case that the same boss had stated repeatedly that she wanted to "go with a younger look" and she did not like having an older man appearing on the news.

Employers sometimes select older workers to be terminated as a money-saving measure, given their generally higher compensation and perhaps their being close to vested retirement benefits. There is no ADEA violation in a decision that treats employees differently because of something other than age, such as money. An employer will not be liable under the ADEA for terminating an employee solely to prevent his pension benefits from vesting. (That conduct might very well violate ERISA, however.) Such a scenario is distinguishable from situations in which employers face ADEA liability because they have made decisions based on the stereotype that productivity and competence always decline with old age.

"Cybersmear" Lawsuits

An electronics company brought an action in California against an anonymous individual who allegedly had trashed the company's publicly traded stock on an Internet message board. Among other comments, the secretive critic had said that the company produced "low tech crap" and that its president was manipulating stock prices. In its efforts to identify the speaker, the company discovered that his online name was registered with a service provider with headquarters in Virginia.

When the plaintiff sought permission from a Virginia court to examine the provider's records, the request was met with stiff resistance. The provider argued that it would infringe on the constitutional right to speak anonymously if it were forced to reveal subscriber information. Citing the principle that the courts of one state generally should respect court orders from a sister court, the Virginia court allowed the review of the provider's records. The right to free speech was not an impediment to the court's ruling, as "the constitutional guarantees of free speech afford no more protection to the speaker than they do to any other tortfeasor who employs words to commit a criminal or civil wrong."

Wounded by disparaging comments posted anonymously on an Internet message board, another company similarly sought to unmask its detractors by forcing information from a provider. In that case, the court saw more merit in the free speech defense raised by the provider, but it did not completely block the request for subscriber information. The court balanced the right to speak anonymously with the right of the injured company to protect its proprietary interests and its reputation.

The result was a compromise of sorts: The company could gain access to the speakers' identities only if it first showed to the court's satisfaction that it could make out a plausible defamation case against them. This meant exactly identifying the offending statements and demonstrating how they harmed the plaintiff. In this case, the critics remained safely in the dark because the company could not substantiate its claims that the comments adversely affected its stock price and its hiring practices.