Petriello v. Indresano

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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.