JOHN HODAVANCE v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN HODAVANCE,

Appellant,

v.

BOARD OF TRUSTEES,

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent.

_________________________________________________________

Argued October 1, 2012 Decided

Before Judges Graves and Espinosa.

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).

PER CURIAM

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 in heaven with his grandfather. John grabbed me and shouted "you told me that my daddy was going to be back!" He said this over and over again.

Deputy Chief Silva then came and approached me with literature in cleaning up a crime scene to hand to the family. I told the Deputy Chief and the family that I would take care of cleaning the store myself. Shortly after Ro left to go to the hospital, I went to the scene and began cleaning the store with a friend. I had to use a shovel to pick up blood, bone pieces and brain matter from the carpet. We then bleached the floor and tried to cover the spot where the blood seeped with a carpet.

Hodavance submitted his application for disability retirement benefits in 2006. At a meeting on November 19, 2007, the Board determined that Hodavance was "totally and permanently disabled." Therefore, he was approved to receive an ordinary disability pension effective December 1, 2007. The Board also advised that it was postponing a decision with regard to Hodavance's request for an accidental disability pension until the Supreme Court decided Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29 (2008), which was pending at that time.

On May 14, 2008, after the Court decided Patterson, the Board denied Hodavance's application for an accidental disability pension. The Board denied the application because Hodavance's "disability did not result from direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury." However, the Board determined that Hodavance would "continue to collect benefits under ordinary disability retirement."

Hodavance appealed the Board's decision, and the matter was sent to the Office of Administrative Law (OAL) for a hearing. The applicable statute, N.J.S.A. 43:16A-7, provides that a member of the Public Employees Retirement System may obtain an accidental disability pension if the member "is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties."

During the initial hearing before an Administrative Law Judge (ALJ), Hodavance acknowledged that he was not on duty on March 24, 2001, and that his life was not in danger while he was at the scene of the crime. Based on the testimony presented at the hearing, the ALJ determined the matter should be returned to the Board to consider "whether the disability-causing incident occurred during and as a result of [Hodavance's] duties." After considering the issue at its meeting on August 3, 2009, the Board concluded that Hodavance "was not in the performance of his official duty on the date of the incident." This additional determination was referred back to the OAL as a contested issue.

Following another hearing on June 15, 2010, the ALJ rendered a written decision on February 16, 2011. The ALJ concluded that Hodavance was not entitled to an accidental disability pension because his disability did not occur as a result of "a traumatic event under Patterson," and his disability did not occur as a result of "any regular or assigned police duties."

At a meeting on May 2, 2011, the Board voted to adopt the ALJ's decision. On appeal, Hodavance argues we should reverse the Board's decision because his disability meets the "standards enunciated by the Supreme Court in Patterson," and his disability "occurred during the performance of his regular and assigned duties." We do not agree.

In Richardson v. Bd. of Trs., Police and Firemen's Ret. Sys., 192 N.J. 189 (2007), the Court explained that to obtain an accidental disability pension under N.J.S.A. 43:16A-7(1), a member of the Public Employees' Retirement System must prove:

1. that he is permanently and totally disabled;

2. as a direct result of a traumatic event that is

a. identifiable as to time and place,

b. undesigned and unexpected, and

c. caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);

3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;

4. that the disability was not the result of the member's willful negligence; and

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

[Id. at 212-213.]

Thereafter, the Court imposed an additional requirement to qualify for an accidental disability pension based on a permanent mental disability caused by a traumatic event without any physical impact:

The disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person. By that addition, we achieve the important assurance that the traumatic event posited as the basis for an accidental disability pension is not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.

[Patterson, supra, 194 N.J. at 34.]

In this case, the ALJ determined that Hodavance was not entitled to an accidental disability pension because there was no threat of danger to his personal safety when he arrived at the murder scene, and he did not experience a traumatic event. In addition, the ALJ concluded that Hodavance's disability did not result from his regular or assigned duties because he was not scheduled to work on March 24, 2001, he was not ordered to work that day, and he was not "paid for his work that day."

Our scope of review of an administrative agency's final determination is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We accord a "strong presumption of reasonableness" to an agency's exercise of its statutorily delegated responsibilities. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).

We conclude from our review of the record that the Board correctly applied the applicable law, and its decision "is supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). Consequently, we find no basis to intervene.

Affirmed.