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14-P-135                                        Appeals Court
14-P-136

                ROSE PETRIELLO vs. ALBERT INDRESANO
                       (and a companion case 1).


                             No. 14-P-135.

            Norfolk.      October 9, 2014. - June 3, 2015.

               Present:   Berry, Hanlon, & Carhart, JJ.


Harassment Prevention. Civil Harassment. Practice, Civil,
     Standing, Findings by judge. Agency.



     Complaints for protection from harassment filed in the
Dedham Division of the District Court Department on July 29,
2013.

     The cases were heard by Robert P. Ziemian, J.


     Sarah W. Peterson for the defendants.
     Frank Hadley Wright, III, for the plaintiff.


     HANLON, J.    The defendants, Albert Indresano, Jr. (Albert),

and Joseph Indresano (Joseph), seek review of G. L. c. 258E




     1
         Rose Petriello vs. Joseph Indresano.
                                                                    2


harassment prevention orders (orders) issued against them. 2,3

They argue that Veronica Higgins-Sullivan, acting under a power

of attorney (POA) executed by the plaintiff, Rose Petriello,

lacked standing to apply for these orders on Petriello's behalf.

The defendants also claim that the abusive conduct that Higgins-

Sullivan alleged did not meet the requirements for issuing the

orders.    Although we are satisfied that Higgins-Sullivan had

standing to apply for the orders, due to the very sparse record

before us, we are constrained to conclude that there was

insufficient evidence to support issuance of the orders under

G. L. c. 258E.

     Background.    The judge heard the following evidence,

largely based on the testimony of Higgins-Sullivan, which the

judge apparently credited.    Petriello lived with Albert

Indresano Sr. as a domestic partner, for approximately forty-

five years, beginning in 1956; Albert, Sr., had four children,

Albert, Joseph, Rosemary Indresano, and Joanne McKeage.     After

Albert Sr.'s death, Petriello moved to 51 Smith Street in

Wellesley, a property belonging to a trust that Albert Sr. had

established for her benefit.    On December 6, 2005, Petriello




     2
       We allowed a motion to consolidate Albert's appeal with
that of his brother, Joseph.
     3
         We use first names for members of the Indresano family.
                                                                   3


executed a health care proxy, appointing Albert as her health

care agent; she named Joseph as the alternate.

     In April, 2013, Petriello, then approximately eighty-eight

years old, had a knee operation at Newton-Wellesley Hospital.

Afterwards, she went to Elizabeth Seton Residence, a

rehabilitation facility in Wellesley Hills.    On May 22, 2013,

Petriello executed a new health care proxy, appointing Higgins-

Sullivan as her health care agent. 4   Petriello left Elizabeth

Seton Residence on June 6, 2013, and moved directly to

Waterstone, an assisted living facility in Wellesley Hills

(Waterstone).   Higgins-Sullivan testified that Petriello wanted

to move from her 51 Smith Street home because "the trust was

broken" -– her bills and expenses were not being paid in

accordance with Albert Sr.'s will, and neither Albert nor Joseph

would allow Petriello to have access to her own checkbook.

     Higgins-Sullivan had agreed to replace Albert as health

care agent after Petriello telephoned her in April, 2013.

During the telephone call, Petriello was "very upset" because

Albert, Joseph, and Rosemary "claimed that [Petriello] had an

abortion in 1956."   Higgins-Sullivan testified that Petriello,

an eighty-eight year old practicing Catholic, denied the

accusation and "it upset [her] to no end."    Apparently, one of

     4
       Albert Sr. was Higgins-Sullivan's biological uncle.
Higgins-Sullivan had known Petriello since 1956 and considered
her to be her aunt.
                                                                     4


the Indresanos then took the telephone from Petriello; however,

Higgins-Sullivan stayed on the line as "[she] was afraid for

[Petriello]," because the three Indresanos "were yelling,

screaming, carrying on."    "After they hung up [Higgins-Sullivan]

immediately called the Wellesley police." 5

     Higgins-Sullivan also testified that, although Petriello

had been living alone at 51 Smith Street, Albert and Joseph had

gone in and out of the house as they pleased, allowing her no

privacy. 6   Petriello telephoned Higgins-Sullivan daily

complaining about the Indresanos; because Petriello "was so very

upset she was calling [Higgins-Sullivan] more.    It was almost

like it was . . . like a blow by blow description of what was

going on with [Petriello]." 7




     5
       In addition, Higgins-Sullivan testified that, one week
prior to that telephone conversation, she had been informed that
someone had telephoned the protective services program of the
Springwell agency, discussed infra, reporting allegations of
elder abuse of Petriello. The record contains no information
about who filed the complaint, who was alleged to have committed
the abuse, or the nature of the alleged abuse.
     6
       According to Higgins-Sullivan, when Albert Sr. was alive,
neither of his sons was allowed on his property, and at one
point, "he even had a restraining order out on them."
     7
       According to Petriello, Albert and Joseph "were upstairs
on the extension listening" to their daily telephone
conversations, or Joseph "would be outside an open window by the
kitchen listening to the conversation." Petriello had no
privacy; "[i]t was just a constant, constant barrage of things
that happened to this woman."
                                                                    5


     Before Petriello moved to Waterstone, Albert and Joseph

went to Waterstone and instructed the staff not to have contact

with her because Albert and Joseph did not want her to move from

51 Smith Street.    Higgins-Sullivan believed that Albert and

Joseph were asked by the Waterstone staff to leave the premises.

The Waterstone staff scheduled a car to pick up Petriello when

she was discharged from Elizabeth Seton Residence, but Albert

and Joseph canceled it.    In addition, Joanne canceled a moving

van that had been scheduled to move Petriello's belongings from

51 Smith Street to Waterstone; also, the locks at 51 Smith

Street were changed, preventing Petriello from gaining access to

her furniture and other belongings.

     Petriello moved to Waterstone on June 6, 2013.    According

to Higgins-Sullivan, Petriello initially enjoyed her life there,

as "she's a very sociable person" and was interacting with other

residents.   On June 17, 2013, Petriello executed the POA,

designating Higgins-Sullivan as her attorney-in-fact, effective

that date.   Sometime after Petriello moved to Waterstone, Albert

and Joseph began visiting her there.    Petriello told Higgins-

Sullivan that she had moved from 51 Smith Street to get away

from the Indresanos, but "they were camping out at

Waterstone. . . .    [I]t was the same as if she was still at 51
                                                                    6


Smith Street. . . .   [I]t was just a constant . . . belittling,

abuse." 8

     In approximately July, 2013, Petriello "got very

depressed."   According to Higgins-Sullivan, "She wouldn't eat.

She wouldn't get dressed.   She didn't, wouldn't bathe and a

psychiatric nurse was called in. . . .   She was in a bad way."

The ensuing psychiatric evaluation revealed that "there had to

be a complete break from the Indresanos."   Petriello was sent to

the "Newton-Wellesley Hospital in the emergency room," until a

room in a locked ward became available for her at Mount Auburn

Hospital.   In a letter dated July 24, 2013, Dr. James A. Evans,

Petriello's treating psychiatrist at Mount Auburn Hospital,

determined that Petriello no longer had the capacity to make her

own decisions due to dementia, and invoked the existing health

care proxy.   Around the same time, Dr. Evans suggested to

Higgins-Sullivan that she obtain a harassment order against the

Indresanos on Petriello's behalf.   Higgins-Sullivan did so; on

July 29, 2013, a judge of the Dedham Division of the District


     8
       Specifically, according to Higgins-Sullivan, Albert and
Joseph said to Petriello, "'[Y]ou shouldn't be moving down here
to Waterstone. We're your family. You don't belong at
Waterstone.'. . . [O]ne of them even said, '[T]hat place is for
Jews and not for Italians. You belong with Italians and
Irish.'" Higgins-Sullivan claimed it was all "foolish nonsense"
to get Petriello to move back to 51 Smith Street; Petriello "did
not want to leave Waterstone. She was in her element. She
enjoys people."
                                                                   7


Court Department issued ex parte harassment prevention orders,

one against Albert and the other against Joseph, and scheduled a

hearing after notice for August 7, 2013. 9,10

     Petriello returned to Waterstone after she was discharged

from Mount Auburn Hospital, and after the initial orders had

been issued.   Petriello's health care providers at Mount Auburn

Hospital told Higgins-Sullivan not to discuss with Petriello

anything pertaining to the Indresanos because it was too

upsetting for her. 11

     Allison Schnaer was a "protective service supervisor" at

Springwell, "an agency that receives [and investigates] reports

of abuse and neglect for people who are over the age of sixty."

Schnaer testified that in April, 2013, Springwell received an

elder abuse report with Petriello as the alleged victim.   The

report was "screened in" by a supervisor because the allegations



     9
       The July 29, 2013, orders ordered Albert and Joseph not to
abuse Petriello, not to contact her, and to stay at least one
hundred yards away from her and from the entire building in
which she resided at 23 Washington Street, Wellesley.
     10
       On the same day, harassment prevention orders also were
issued against Rosemary, Donna Indresano (Joseph's wife), and
Joanne ; those orders are not a part of this appeal.
     11
       At the end of the first hearing day, three letters from
Waterstone and one letter from a nurse, all describing the
conduct of the defendants, were submitted and marked for
identification. The record does not indicate whether the
letters were admitted in evidence and they are not in the record
before us.
                                                                   8


fit Springwell's "definition[] of abuse." 12   Schnaer first met

Petriello at the discharge planning meeting at Mount Auburn

Hospital; her second meeting with Petriello was at Waterstone,

to check on her after she was discharged from Mount Auburn

Hospital.   In conversation with Schnaer, Petriello brought up

the pending harassment order hearing; she told Schnaer that "she

was in agreement with the restraining order."    According to

Higgins-Sullivan, Petriello told a Springwell representative

that she no longer wanted to see or to talk to the Indresanos.

During its investigation, Springwell "did substantiate the

allegations" of elder abuse; an ongoing service plan was created

for Petriello in an attempt to "help her stay safe in her

community and at Waterstone and reduce the emotional abuse that

was going on."   Schnaer testified that the risks to Petriello

changed due to her hospitalization and move to assisted living;

however, at the time of the hearing, Petriello's case with

Springwell was still "ongoing."

     At the close of the evidence, the judge denied the

defendants' oral motions for directed verdicts.    The judge

stated that, in applying the law to the case, the standard would

be based on "an eighty eight year old woman," and that he had


     12
       As part of its screening process, Springwell reviews each
report for six indicators of abuse: physical abuse, emotional
abuse, sexual abuse, financial exploitation, caregiver neglect,
and self-neglect.
                                                                       9


"no problem finding physical harm to her when she went to the

emergency room." 13    The judge extended the orders against Albert

and Joseph for one year, that is, until August 8, 2014. 14

     Discussion.      Standing.   It appears, and the defendants do

not argue otherwise, that the POA was valid and that it was in

full force and effect at the time that Higgins-Sullivan sought

the harassment prevention orders. 15     Nonetheless, the defendants

argue that Higgins-Sullivan, despite the POA, did not have

standing to seek the orders on Petriello's behalf.      In their

view, designation as a guardian ad litem would have sufficed,

but not a POA.

     The effect of a written POA is a legal issue.      McQuade

v. Springfield Safe Deposit & Trust Co., 333 Mass. 229, 233

(1955).   "[The court] must put [itself] in the place of the

parties to the instrument and give its words their plain and

ordinary meaning in the light of the circumstances and in view

of the subject matter. . . .      The rule of construction that a

     13
       The transcript provided to us does not include the final
arguments.
     14
       It does not appear that the judge addressed the
defendants' requests for written findings pursuant to
Mass.R.Civ.P. 52, as amended, 423 Mass. 1408 (1996).
     15
       At the hearing on August 7, 2013, the defendants conceded
that they "didn't see any problems with witnessing" as to the
document designating Higgins-Sullivan as the health care agent.
Counsel off-handedly raised "a question of undue influence," but
did not pursue it. There is, however, no reference to the POA
or to concerns about the validity of that instrument.
                                                                    10


power of attorney must be strictly interpreted does not go to

the extent of destroying the purpose of the power."   Ibid.

See Grabowski v. Bank of Boston, 997 F. Supp. 111, 125 (D. Mass.

1997) ("In most respects, a power of attorney is interpreted in

the same manner as any other contract. . . .   A contract must be

interpreted as a whole and effect must be given to all of its

provisions in order to effectuate its overall purpose.    See J.A.

Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 [1986].     In

interpreting a contract, the court 'must give effect to the

parties' intentions and construe the language to give it

reasonable meaning wherever possible.'    Shea v. Bay State Gas

Co., 383 Mass. 218, [224-225 (1981)]").

     Here, the POA explicitly granted to Higgins-Sullivan the

authority to "exercise or perform any act, power, duty, right or

obligation whatsoever that [Petriello then had], or may

hereafter acquire, relating to any person, matter, transaction,

personal or real property, now owned or hereafter acquired

. . . , to the same extent that [Petriello herself] might do if

personally present."   In addition, paragraph 29 of the POA

specified that "[a]ny party dealing with any person named as

attorney-in-fact hereunder may rely absolutely upon the

authority granted herein and need not look to the application of

any proceeds nor the authority of [Petriello's] said attorney-

in-fact as to any action taken hereunder."   In all of the
                                                                  11


circumstances of this case, including the timing of the

execution of the POA, in the midst of ongoing conflict with

members of the Indresano family, and soon after Petriello

changed her health care agent designation from Albert (and

Joseph as alternate) to Higgins-Sullivan, it is reasonable to

conclude that Petriello intended for Higgins-Sullivan to act on

her behalf at least in all matters relating to the Indresanos. 16

     Further, paragraph 25 of the POA required that Higgins-

Sullivan consult with Petriello on "matters pertaining to the

exercise of powers under this instrument."   While Higgins-

Sullivan herself did not testify in detail about any

conversation with Petriello on that subject, the fact that

Petriello brought up in conversation with Schnaer the subject of

the pending orders and her agreement with them, is a clear

indication that the required consultation took place.

Cf. Gagnon v. Coombs, 39 Mass. App. Ct. 144, 156 (1995).

     As a result, when Higgins-Sullivan sought and was granted

the orders, she did so with the powers validly granted to her

under the POA, despite the fact that Petriello had been declared

     16
       We also have in mind the unrebutted testimony of Higgins-
Sullivan, credited by the judge, that Petriello's treating
psychiatrist, who invoked the health care proxy, also advised
Higgins-Sullivan to seek a harassment prevention order on
Petriello's behalf against the Indresanos, as well as the
counsel of another medical professional caring for Petriello
that the Indresanos should not be mentioned to Petriello, for
fear of upsetting her.
                                                                     12


incompetent.   See G. L. c. 190B, §§ 5-501, 5-502. 17   As attorney-

in-fact, Higgins-Sullivan's act of seeking the orders was, in

effect, equivalent to Petriello seeking the orders were she

competent to do so.   See id. at § 5-502.    We are satisfied that

Higgins-Sullivan, as the attorney in fact named in the POA, had

proper standing to seek orders on behalf of Petriello.

     Sufficiency of the evidence.   In reviewing a civil

harassment prevention order, we consider whether the judge could

find, by a preponderance of the evidence, together with all

permissible inferences, that the defendant had committed

"[three] or more acts of willful and malicious conduct aimed at

a specific person committed with the intent to cause fear,

intimidation, abuse or damage to property and that [did] in fact

cause fear, intimidation, abuse or damage to property."     G. L.

c. 258E, § 1, inserted by St. 2010, c. 23.    See Seney v. Morhy,

467 Mass. 58, 60 (2014).   See also O'Brien v. Borowski, 461

Mass. 415, 420 (2012) ("[T]he acts of harassment must be wilful

and '[m]alicious,' the latter defined as 'characterized by

cruelty, hostility or revenge,' and they must be committed with

     17
       "All acts done by an attorney in fact pursuant to a
durable power of attorney during any period of disability or
incapacity of the principal have the same effect and inure to
the benefit of and bind the principal and his successors in
interest as if the principal were competent and not disabled.
Unless the instrument states a time of termination, the power is
exercisable notwithstanding the lapse of time since the
execution of the instrument." G. L. c. 190B, § 5-502, inserted
by St. 2008, c. 521, § 9.
                                                                    13


'the intent to cause fear, intimidation, abuse or damage to

property.' . . .    Second, the multiple acts of civil harassment

must 'in fact cause fear, intimidation, abuse or damage to

property'"), quoting from G. L. c. 258E, § 1.

     In the context of a civil order, the test is a subjective

one; if all of the other elements are present, it is sufficient

to show that the harassment actually caused fear, intimidation,

or abuse to the plaintiff, even if a reasonable person in the

plaintiff's situation would not have been so

affected. 18   O'Brien, supra.   Contrast G. L. c. 265, § 43A, as

appearing in St. 2010, c. 92, § 10 ("Whoever willfully and

maliciously engages in a knowing pattern of conduct or series of

acts over a period of time directed at a specific person, which

seriously alarms that person and would cause a reasonable person

to suffer substantial emotional distress, shall be guilty of

the crime of criminal harassment and shall be punished"

[emphasis supplied]).    In addition, while the plaintiff must

show that the defendant committed three specific acts, and that,

for each act, "the defendant intended to cause fear,

intimidation, abuse, or damage to property," it is "the entire

course of harassment, rather than each individual act, that must

cause fear or intimidation."     O'Brien, supra at 426 n.8.


     18
       It is also sufficient if the plaintiff shows damage to
her property.
                                                                   14


     The record before us is very thin, and it is replete with

generalities and conclusions.   There certainly is evidence from

which the judge properly concluded that Petriello was physically

harmed by the conduct of the defendants and other members of

their family.   In addition, there was at least one act, as the

defendants concede, that fairly could have been deemed abusive -

- when someone took the telephone away from Petriello and there

was yelling and screaming in the background to such an extent

that Higgins-Sullivan stayed on the line until the telephone

call was ended; she then telephoned the Wellesley police.

However, on this record, we do not know who was present when

that occurred nor who participated, either by taking the

telephone away or by acquiescing in the behavior and being

available to assist in the harassment and intimidation.

     In addition, the demands of c. 258E are quite specific and

they differ from those of G. L. c. 209A in more ways than simply

who is entitled under the statute to seek the court's

protection.   For example, in this case, if the court had had

jurisdiction under c. 209A because, for example, the defendants

had once lived with Petriello, making them former household

members, it is possible that the defendants' behavior, if proven

by credible evidence, might reasonably have justified issuing an

abuse prevention order under c. 209A.   That is, the judge might

have been persuaded that the defendants' behavior constituted
                                                                   15


abuse because it caused physical harm to Petriello.     G. L.

c. 209A, § 1. 19

        To support a harassment prevention order under c. 258E,

however, there must be three specific acts of harassment.

See Seney v. Morhy, 467 Mass. at 63; Smith v. Mastalerz, 467

Mass. 1001 (2014).     If the case involves speech, it must fall

"within [a] constitutionally unprotected category of

speech."    Commonwealth v. Johnson, 470 Mass. 300, 311 (2014).

In O'Brien, the court gave as examples of unprotected speech

both "fighting words" ("words that are likely to provoke a

fight:     face-to-face personal insults that are so personally

abusive that they are plainly likely to provoke a violent

reaction and cause a breach of the peace"), and "true threats"

("'those statements where the speaker means to communicate a

serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals,'

. . .     [W]ords that are intended to place the target of the

threat in fear, whether the threat is veiled or explicit'

[citations omitted]).     461 Mass. at 423-424.

     In Johnson, the court held the evidence sufficient to

support a criminal conviction of harassment where the defendants

     19
       There is no showing on this record that the defendants in
fact were former household members of Petriello or that she
otherwise qualified for relief under G. L. c. 209A. Cf. Sorgman
v. Sorgman, 49 Mass. App. Ct. 416, 417 (2000); Aguilar v.
Hernandez-Mendez, 66 Mass. App. Ct. 367, 370 (2006).
                                                                     16


had created false Internet postings, "luring numerous strangers

and prompting incessant late-night telephone calls to [the

victims'] home."   470 Mass. at 309.   The Johnson defendants also

had falsely accused one of the victims of committing a serious

crime and threatened to misuse the victims' personal identifying

information.   Ibid.    "Where the sole purpose of the defendants'

speech was to further their endeavor to intentionally harass the

[victims], such speech is not protected by the First Amendment.

'The [F]irst [A]mendment does not provide a defense to a

criminal charge simply because the actor uses words to carry out

his illegal purpose.'     United States v. Barnett, 667 F.2d 835,

842 (9th Cir. 1982)."     Johnson, supra.

     In this case, on this record, we can see only the one act

of harassment conceded, and, even as to that, as noted supra, we

cannot say who was present, who took the telephone away from

Petriello, nor who assisted or was merely present.    Many of the

other allegations -- things alleged to have been said by the

defendants, including accusing Petriello of having undergone an

abortion, however distressing to her, cannot fairly be said to

constitute harassment, as the statute has been interpreted, at

least on the record before us, which tells us nothing about who

made the accusation or in what circumstances.    The words

themselves, without a context, are neither a threat nor fighting

words.   Nor can the accusation that Petriello had an abortion,
                                                                   17


by itself, reasonably be considered "[s]peech integral to

criminal conduct."   Id. at 311.    As part of a larger plan

wilfully and maliciously to cause fear, intimidation, or abuse,

such an accusation, particularly if false, might be considered

an act of harassment, if the record showed that a particular

defendant had said it to Petriello.     However, even if there were

record support, that accusation would be only a second act of

harassment.

     As to the other testimony, this record does not reveal what

happened at Waterstone when the defendants were asked to leave;

who canceled the car that was to pick Petriello up at Elizabeth

Seton Residence and take her to Waterstone; what conduct led to

Dr. Evans's recommendation that Higgins-Sullivan seek a

harassment order; or what allegation was made to, and

substantiated by, Springwell.    Nor can we say, on this record,

whether Petriello suffered actual fear for her physical safety

or her property, or, instead, embarrassment at the allegations

and distress about the invasion of her privacy and unwanted

presence of Albert and Joseph.     We do not dismiss lightly the

possibility that Petriello's distress caused her physical harm

and we express no opinion whether on these facts a judge might

find that the defendants intended to cause Petriello harm or

whether they did so wilfully or maliciously.     Nevertheless,

because the record does not permit a finding of three specific
                                                                 18


acts of harassment by these defendants, we are constrained to

order the harassment prevention orders to be vacated.   We remand

this case to the District court for entry of orders consistent

with this opinion.

                                   So ordered.
