P.H. v. G.S.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1078

P.H.

vs.

G.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the extension of a harassment

prevention order (order) issued against him pursuant to G. L.

c. 258E, § 3, following a hearing after notice. He argues that

the order was extended in error because the evidence was

insufficient to establish three or more acts of harassment, as

required by G. L. c. 258E, § 1.1 We agree and vacate the order.

Discussion. When reviewing a harassment prevention order

issued pursuant to the first prong of the statute, "we consider

whether the judge could find, by a preponderance of the

1The defendant also seeks review of the ex parte order,
claiming a conflict of interest on the part of that judge.
Given our decision, we need not address this argument. In any
event, that order is not reviewable on appeal. See V.M. v.
R.B., 94 Mass. App. Ct. 522 (2018).
evidence, together with all permissible inferences, that the

defendant 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.'" A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015),

quoting G. L. c. 258E, § 1. "The plaintiff bears the burden of

proving that each of the three qualifying acts was maliciously

intended, defined by G. L. c. 258E, § 1, as being 'characterized

by cruelty, hostility or revenge,' and that each act was

intended by the defendant to place the plaintiff in 'fear of

physical harm or fear of physical damage to property.'" A.T.,

supra, quoting O'Brien v. Borowski, 461 Mass. 415, 427 (2012).

Here, the judge found three acts of harassment: the first

occurred in the spring of 2022, the second in the spring of

2024, and the third on April 24, 2024. During the spring 2024

incident, the plaintiff, the former head of a private school,

was picking up a prescription from a pharmacy when the

defendant, whose son was dismissed from that school six years

earlier, spotted the plaintiff standing in the aisle. The

defendant then "ran up toward" the plaintiff, and began a "loud,

profane, extended rant" that lasted a couple of minutes, during

which the defendant said, "You ruined my son's life," and,

"You're a horrible person"; twice called the plaintiff "a piece

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of shit"; and suggested that the plaintiff was catering to

wealthy donors at the school. The plaintiff testified that this

interaction made him feel nervous, and that it caused the

pharmacist to offer to call the police. The defendant left the

store shortly thereafter.

While certainly upsetting, the defendant's conduct on this

occasion did not amount to harassment within the meaning of

G. L. c. 258E, § 1. See Gassman v. Reason, 90 Mass. App. Ct. 1,

8 (2016). Cf. Seney v. Morhy, 467 Mass. 58, 63-64 (2014)

(evidence that defendant "verbally attacked and threatened to

have [the plaintiff] thrown off the team in front of numerous

other parents" and "attacked [the plaintiff's] personal being in

front of every single parent" insufficient to constitute

harassment). Contrast V.J. v. N.J., 91 Mass. App. Ct. 22, 23-28

(2017) (sufficient evidence of three acts where defendant

grabbed plaintiff from behind across her chest in a "bear hug"

as if attempting to "abduct her"; "verbally assault[ed]" her and

threatened her job; and refused to leave until police removed

him). See C.E.R. v. P.C., 91 Mass. App. Ct. 124, 131-132 (2017)

("boorish and no doubt upsetting [conduct] . . . [does] not

constitute 'harassment' within the meaning of c. 258E").

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In the absence of three acts of harassment,2 the evidence

was insufficient to extend the order. We therefore remand the

case to the Boston Municipal Court for entry of an order

vacating and setting aside the order dated June 21, 2024, and

for further actions required by G. L. c. 258E, § 9. See F.K. v.

S.C., 481 Mass. 325, 335 (2019).

So ordered.

By the Court (Blake, C.J.,
Ditkoff & Brennan, JJ.3),

Clerk

Entered: June 6, 2025.

2 As we conclude that the spring 2024 incident does not meet
the statutory definition of harassment, we need not address the
sufficiency of the remaining two acts.

3 The panelists are listed in order of seniority.

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