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Suit against 84 Lumber founder altered

| Friday, Sept. 13, 2013, 12:01 a.m.

A judge's finding that teenagers cannot be found negligent for giving alcohol to other minors has prompted attorneys to amend a wrongful death lawsuit filed against 84 Lumber founder Joe Hardy and his daughter, Paige.

Daniel and Tricia Nelson of Chalk Hill filed the lawsuit in October against the Hardys, Steven DiCenzo of Uniontown and the Hardy family's resort, Nemacolin Woodlands Inc. and Nemacolin Inc.

The Nelson's 17-year-old son, Zack, died five days after DiCenzo's vehicle hit a tree at Nemacolin Woodlands Resort near Farmington in September 2011. Police said DiCenzo, who was 17 at the time, had a blood-alcohol content of 0.136 percent.

In the original lawsuit, the Nelsons' attorneys, Thomas E. Crenney Associates of Pittsburgh, argued that Paige Hardy was negligent because although she was just 15, she allegedly provided whiskey and rum to DiCenzo and other minors who attended a party she hosted on the resort grounds.

The teens spent the night drinking at Hardy's residence and at another location at the resort known as the “tree house,” according to the lawsuit. Around 10:30 p.m., DiCenzo was driving Nelson, Paige and three other teens to a swimming pool at the resort when he lost control on a sharp curve and struck a tree head-on, according to the lawsuit.

Paige was in the front seat, directing DiCenzo because he was unfamiliar with the resort, but she failed to warn him of the curve, the Nelsons contend. Zack Nelson, who was in the back seat, was ejected. He suffered major head trauma and died five days later in Ruby Memorial Hospital in Morgantown, W.Va.

During a hearing in May before Judge John F. Wagner Jr., the Hardys' attorney, M. Scott Gemberling of Philadelphia, argued that Paige Hardy could not be held liable under the “social host” doctrine for giving DiCenzo alcohol because she is a minor.

In August, Wagner issued an order in which he sided with Gemberling and dismissed two counts of the lawsuit that claimed Paige Hardy was negligent for furnishing alcohol to DiCenzo.

In rendering his opinion, Wagner cited a 1994 Pennsylvania Supreme Court Case, Kapres v. Heller, in which the justices found that “one minor does not owe a duty to another regarding the furnishing or consumption of alcohol. Both the minor who allegedly furnished the alcohol and the minor who consumed it are incompetent as a matter of law to handle the substance, and under the law, each minor is responsible for his/her own actions in either furnishing or consuming alcohol.”

As a result of Wagner's order, the Nelsons' attorneys last week amended the lawsuit to exclude any negligence allegations based on Paige Hardy having allegedly provided DiCenzo with alcohol, but they reserved their right to appeal. The attorneys left in place a separate negligence allegation that contends Paige Hardy failed to warn DiCenzo of the sharp bend in the road just before the crash.

In addition, Wagner, in his order, left intact a negligence claim from the original lawsuit in which the Nelsons allege Joe Hardy is liable because he knew his teenage daughter hosted underage drinking parties, including the one that ended in the fatal vehicle accident, but he did nothing to cut off her access to alcohol.

DiCenzo was charged as a juvenile with homicide by vehicle, homicide by vehicle while driving under the influence, aggravated assault by vehicle and driving under the influence.

In March 2012, he was ordered to spend at least 45 days in an alcohol-treatment facility and to give 12 talks to other teens warning of the dangers of drinking and driving.

Liz Zemba is a reporter for Trib Total Media. She can be reached at 412-601-2166 or lzemba@tribweb.com.

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