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  3. Appeals Court Further Clarifies “Three Acts” Requirement in c. 258E Harassment Prevention Orders

In another decision interpreting the “three acts” requirement of G. L. c. 258E, § 1 (governing harassment prevention orders not covered by c. 209A), the Massachusetts Appeals Court on August 7, 2019 in the case T.M. vs. R.K. (No. 18-P-422) determined that the second of two letters sent by a fired employee decades after his termination could not constitute two separate acts. Therefore, because the record only included two acts (the first and second letters), the Appeals Court vacated the District Court’s permanent extension of a c. 258E harassment prevention order.

The facts of the case are as follows. In 1991, the Boston Water and Sewer Commission (BWSC) employed both the plaintiff and the defendant. T.M. supervised R.K. while at BWSC. Later that year, BWSC laid off R.K. 21 years later, R.K. sent a concerning letter to T.M.’s home (first letter). In that letter, R.K. characterized T.M. as being part of the “cabal that fired [him from BWSC] for sport.” The letter stated: “I recently thought of how you piously condemned people who earn their daily bread by selling alcohol, then you happily and most self-righteously fired good hard-working people, people who supported families, just because it gave your cabal pleasure. “Now that you are in the 6th decade of life, I want to ask you, ‘Do you ever feel bad about the hurt and pain you caused? Do you ever think of the lives your cabal disrupted? Do you think of yourself as a sanctimonious hypocrite for damning those who peddle alcohol while you blithely destroy families by dismissing their breadwinners with a wave of your hand?” Later, R.K. sent T.M. another letter (second letter), which demonstrated that R.K. had been researching T.M.’s business and personal records, as well as the records of other BWSC managers who R.K. alleged were part of the “cabal.” R.K. ended his letter, stating: “Lastly, according to public records, you have not fared well, multiple mortgages, an insignificant consulting business, etc. Are all these occurrences spurious relationships or justice, I will let you ponder this and other matters as you can think . . . on your sins.”

Upon receipt of the second letter, T.M. sought and, after a hearing at which both parties were present, obtained a one-year c. 258E harassment prevention order that was later extended to be a permanent order.

Harassment is defined as “[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 does in fact cause fear, intimidation, abuse or damage to property.” G. L. c. 258E, § 1. At the hearing on T.M.’s original c. 258E complaint for protection from harassment, the judge concluded that there were at least three acts of harassment: (i) the first letter; (ii) the second letter; and (iii) “the gathering of personal information about somebody that [R.K.] hasn’t spoken to in over 25 years,” which R.K. detailed in the second letter.

In analyzing the case, however, the Appeals Court cited F.K. v. S.C., 481 Mass. 325, 332-333 (2019) (defendant’s singular song cannot be divided into “many ‘individual lyrics’ for the purpose of finding separate acts of harassment”) for the proposition that “[o]ne continuous act cannot be parsed into its constituent parts so as to satisfy G. L. c. 258E, § 1.” As a result, the Appeals Court concluded that “the second letter could not be parsed into several acts.” The Appeals Court did note that “if there is a third alleged act, R.K. may reassert this argument should T.M. use the two letters to support a future c. 258E complaint for protection from harassment, which T.M. is entitled to do.” This is so because in evaluating a c. 258E harassment prevention order, “the judge must ‘examine the words and conduct in the context of the entire history of the parties’ hostile relationship.’“ G.B. v. C.A., 94 Mass. App. Ct. 389, 393-394 (2018).In another decision interpreting the “three acts” requirement of G. L. c. 258E, § 1 (governing harassment prevention orders not covered by c. 209A), the Massachusetts Appeals Court on August 7, 2019 in the case T.M. vs. R.K. (No. 18-P-422) determined that the second of two letters sent by a fired employee decades after his termination could not constitute two separate acts. Therefore, because the record only included two acts (the first and second letters), the Appeals Court vacated the District Court’s permanent extension of a c. 258E harassment prevention order.

The facts of the case are as follows. In 1991, the Boston Water and Sewer Commission (BWSC) employed both the plaintiff and the defendant. T.M. supervised R.K. while at BWSC. Later that year, BWSC laid off R.K. 21 years later, R.K. sent a concerning letter to T.M.’s home (first letter). In that letter, R.K. characterized T.M. as being part of the “cabal that fired [him from BWSC] for sport.” The letter stated: “I recently thought of how you piously condemned people who earn their daily bread by selling alcohol, then you happily and most self-righteously fired good hard-working people, people who supported families, just because it gave your cabal pleasure. “Now that you are in the 6th decade of life, I want to ask you, ‘Do you ever feel bad about the hurt and pain you caused? Do you ever think of the lives your cabal disrupted? Do you think of yourself as a sanctimonious hypocrite for damning those who peddle alcohol while you blithely destroy families by dismissing their breadwinners with a wave of your hand?” Later, R.K. sent T.M. another letter (second letter), which demonstrated that R.K. had been researching T.M.’s business and personal records, as well as the records of other BWSC managers who R.K. alleged were part of the “cabal.” R.K. ended his letter, stating: “Lastly, according to public records, you have not fared well, multiple mortgages, an insignificant consulting business, etc. Are all these occurrences spurious relationships or justice, I will let you ponder this and other matters as you can think . . . on your sins.”

Upon receipt of the second letter, T.M. sought and, after a hearing at which both parties were present, obtained a one-year c. 258E harassment prevention order that was later extended to be a permanent order.

Harassment is defined as “[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 does in fact cause fear, intimidation, abuse or damage to property.” G. L. c. 258E, § 1. At the hearing on T.M.’s original c. 258E complaint for protection from harassment, the judge concluded that there were at least three acts of harassment: (i) the first letter; (ii) the second letter; and (iii) “the gathering of personal information about somebody that [R.K.] hasn’t spoken to in over 25 years,” which R.K. detailed in the second letter.

In analyzing the case, however, the Appeals Court cited F.K. v. S.C., 481 Mass. 325, 332-333 (2019) (defendant’s singular song cannot be divided into “many ‘individual lyrics’ for the purpose of finding separate acts of harassment”) for the proposition that “[o]ne continuous act cannot be parsed into its constituent parts so as to satisfy G. L. c. 258E, § 1.” As a result, the Appeals Court concluded that “the second letter could not be parsed into several acts.” The Appeals Court did note that “if there is a third alleged act, R.K. may reassert this argument should T.M. use the two letters to support a future c. 258E complaint for protection from harassment, which T.M. is entitled to do.” This is so because in evaluating a c. 258E harassment prevention order, “the judge must ‘examine the words and conduct in the context of the entire history of the parties’ hostile relationship.’“ G.B. v. C.A., 94 Mass. App. Ct. 389, 393-394 (2018).