A single justice of this
court denied the petitioner's
pro se petition for relief
under G. L. c. 211, § 3,
and his motion for a stay
of related criminal proceedings
in the District Court. The
petitioner appealed and,
because the underlying matter
is a protective order issued
pursuant to G. L. c. 209A
(209A order), we have allowed
him to proceed in the regular
appellate process. See Parekh
v. Parekh, 421 Mass. 1009
(1996).
The petitioner's main challenge
is to a 209A order that
was entered on December
15, 1995, extending an ex
parte order that had been
entered ten days earlier.
We have no evidence concerning
the current status of the
209A order, which was due
to expire in December, 1996,
several months before this
case was submitted to the
court, but there is a suggestion
in the record that the petitioner
has been charged criminally
with multiple violations
of the initial, ex parte
order. In these circumstances,
we do not regard the matter
as moot, see Frizado v.
Frizado, 420 Mass. 592,
593-594 & n.2 (1995);
Cobb v. Cobb, 406 Mass.
21, 23 (1989), and we shall
consider the merits of the
petitioner's arguments.
We have listened to the
tape recording of the District
Court hearing and reviewed
the petitioner's submissions.
The testimony before the
District Court was not sufficient
to warrant the extension
of the 209A order. The complainant
initially sought the 209A
order because she alleged
that the petitioner "placed
[her] in fear of imminent
serious physical harm"
by sending her notices of
a future lawsuit and court
proceedings. She testified
that she suffered "emotionally"
and experienced an aggravation
of her ulcers as a result
of receiving the petitioner's
notices. Such conduct by
the petitioner, even if
true, does not evidence
a threat or rise to the
level of "imminent
serious physical harm"
that this court has recognized
as "abuse" under
G. L. c. 209A, § 1.[2] Contrast
Flynn v. Warner, 421 Mass.
1002, 1003 (1995) (father
told son to use plastic
sword to slit throats of
complainant mother and her
attorney). Therefore, assuming
without deciding that, in
some circumstances, physical
manifestations of emotional
harm resulting in the aggravation
of preexisting medical conditions
can constitute "physical
harm," and therefore
"abuse," within
the meaning of G. L. c.
209A, § 1, we are convinced
that this is not such a
case. Cf. Commonwealth v.
Jacobsen, 419 Mass. 269,
273-274 (1995). Finally,
we note that the conduct
complained of, i.e., the
sending of legal notices
by mail or the delivery
of such through a sheriff's
department, was expressly
permitted by the temporary
209A order.
We conclude that the 209A
order should not have been
issued because the conduct
complained of did not constitute
"abuse" as defined
in G. L. c. 209A, § 1.
Accordingly, the judgment
denying relief under G.
L. c. 211, § 3, is reversed.
The case is remanded to
the county court where an
order shall issue consistent
with this opinion.
So ordered.
Michael L. Larkin, pro
se, submitted a brief.
NOTES
[1] Greg W. Irvine, the
Littleton police department,
and Lauri J. Larkin.
[2] In these circumstances,
we reiterate that "[a]
judge must consider carefully
whether serious physical
harm is imminent and should
not issue a G. L. c. 209A
order simply because it
seems to be a good idea
or because it will not cause
the defendant any real inconvenience."
Smith v. Joyce, 421 Mass.
520, 523 n.1 (1995).
