NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 1, 2012
On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS No. 3-10-35994.
Paul L. Kleinbaum argued the cause for Appellant (Zazzali Fagella Nowak Kleinbaum & Friedman, attorneys; Mr. Kleinbaum, of Counsel and on the brief).
Robert H. Stoloff, Assistant Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, Attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stoloff, On the brief).
Before Judges Graves and Espinosa.
John Hodavance (Hodavance) was hired by the Township of Hillside as a police officer in 1995. He appeals from a May 3, 2011 decision of the Board of Trustees of the Public Employees' Retirement System (the Board), which found he did not qualify for an accidental disability pension. We affirm the Board's decision.
The essential facts are not in dispute. On March 24, 2001, at approximately 8:44 a.m., Officer Anthony Troiano responded to a reported shooting at the Roofing Outlet in Hillside. When Troiano arrived on the scene, he found Joseph Licciardello, the owner of the business, dead from a gunshot wound to his head. Licciardello's son, Gregory, had also been shot but was still alive. Another son, John, was also present.
Hodavance was not on duty that day. However, Troiano knew that Hodavance had a close personal relationship with Joseph Licciardello and his family. After the scene was secured and Gregory was taken to the hospital, Troiano telephoned Hodavance to tell him what happened and to ask if he could come to the Roofing Outlet to console John.
In a letter in support of his application for accidental disability retirement benefits based on a psychological disability, Hodavance described his activities that day as follows:
I arrived at the store in about 10 minutes. John Licciardello immediately ran up to me and asked me to go inside and wake up daddy. John had been standing outside the building with other officers. I told John I would be right back and I went into the store. Upon entering, I observed Joe lying behind the desk with a large pool of blood around his head and what appeared to be a gunshot [wound] in his forehead. Detective John Baum of the Hillside PD seeing that I was shaken told [me to] leave and take care of John.
I went outside to regain my composure and attend to John who was crying and had urinated on himself. John repeatedly said "John, bad person came in, bang, bang, bang daddy hit in the head – wake him up." I told John that daddy was going to be fine. I learned that Greg was transported [to] the UMDNJ in Newark and that Joe's wife had been contacted and was coming to the scene. I waited with John at the Roofing Outlet for about 45 minutes and with the arrival of the press and onlookers, I [thought] it was best to get John away from the scene. I decided to take John to police headquarters. I brought John there and had him color and gave him a ruler and a balloon. John repeatedly kept asking for his father.
Approximately 2 1/2 hours later, Rosemarie Licciardello, Joe's wife, arrived at the scene. She was not allowed on the scene and was sent to police headquarters to speak with me. Upon arrival to headquarters, the desk officer notified me of her arrival and I took Rosemarie and her older son and told them that Joe was shot and killed in the course of a robbery. Ro began screaming "No! No! No!" and she and I began crying uncontrollably. I then had to tell her that Greg had also been shot and he was at the UMDNJ, but appeared to be recovering. After a few minutes Ro and I spoke to John and told him that daddy was not coming home, that now [he] was ...