Republic of the Philippines

COURT OF APPEALS
Cebu City

TWENTIETH (20th) DIVISION

MANUEL ROZAL,
Petitioner,

-versus- CA-G.R. CEB SP. No. 01085

NATIONAL LABOR RELATIONS

COMMISSION (4TH DIVISION) and
JAIME VALIDA, JR.
Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - -x

COMMENT

PRIVATE RESPONDENT JAIME VALIDA, JR., by counsel, respectfully

submits this COMMENT in compliance with the Resolution of the Court dated 27
September 2005, a copy of which was received on 5 October 2005.

PRELIMINARY STATEMENT

Petitioner MANUEL ROZAL seeks relief under Rule 65 of the 1997 Rules
of Civil Procedure in assailing the Resolution dated 1 February 2005
promulgated by the Honorable National Labor Relations Commission. Fourth
Division, Cebu City, which reconsidered and set aside its own Decision dated 31
August 2004 which reversed the appealed decision dated 14 November 2003 of
the Honorable Labor Arbiter, and its Resolution dated 31 May 2005 denying the
petitioner’s motion for reconsideration for want of legal and factual basis.

RELEVANT FACTUAL ANTECEDENTS

The facts relevant and material to the resolution of the petition may be
summarized as follows:
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1. On 18 June 2003 the petitioner filed a complaint for illegal dismissal,

etc. against the private respondent before the Regional Arbitration Branch VIII of
the National Labor Relations Commission at Tacloban City.

2. A mandatory conference was held on 24 July 2003 and terminated, and

the parties were required to submit their respective position papers.

3. Petitioner filed his position paper on 8 August 2003 while private

respondent filed his position paper on 12 August 2003. Petitioner filed a reply
position paper on 25 August 2005, while private respondent filed his rejoinder [to
reply position paper] on 1 September 2003.

4. On 28 November 2003, private respondent received a copy of the

Decision dated 14 November 2003 promulgated by the Honorable Labor Arbiter,
rendering this dispositive portion, to wit:

“WHEREFORE, premises considered, judgment is hereby

rendered dismissing the complaint for lack of jurisdiction there being no
employer-employee relationship between complainant and respondent.”

5. On 8 December 2003, petitioner filed his Notice of Appeal with Appeal

Memorandum to herein public respondent Fourth Division of the National Labor
Relations Commission at Cebu City.

6. On 31 August 2004, the public respondent promulgated its Decision

reversing the appealed Decision of the Honorable Labor Arbiter.

7. Private respondent filed a Motion for Reconsideration. Petitioner filed an

Opposition to the Motion for Reconsideration.

8. On 1 February 2005, the public respondent reconsidered its Decision,

the dispositive portion stating to wit:

“WHEREFORE, foregoing discussions considered, the decision

dated August 31, 2004 is hereby reconsidered and set aside and a new
judgment is hereby entered absolving respondent Jaime A. Valida, Jr. to
pay complainant’s Manuel Rozal his money claims.”

9. On 28 March 2005, private respondent received a Motion for

Reconsideration of the 1 February 2005 Resolution filed by petitioner. On 5 April
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2005, Private Respondent filed an Opposition1 to the petitioner’s Motion for

Reconsideration. (The remaining pleading in the records purposely or
inadvertently not attached to the Petition.)

10. On 31 May 2005, the public respondent promulgated its now-assailed

Resolution denying the petitioner’s Motion for Reconsideration, the dispositive
portion of which reads:

“WHEREFORE, in the light of the foregoing discussions, the

present Motion for Reconsideration is hereby DENIED for want of legal
and factual basis.”

11. Hence, Rozal’s petition.

CONTENTIONS

The petition deserves outright denial based on the following grounds:

1. Verification failed to conform with the

requirements of Section 4, Rule 7 of the 1997
Rules of Civil Procedure (as amended by SC
Circular No. 48-2000)

2. Public respondent acted in complete

accord with law and did not abuse its discretion.
In the instant case, the petitioner wants to correct
a perceived error of judgment, not error of
jurisdiction.

DISCUSSION

1. Verification failed to conform

with the requirements of Section 4, Rule 7
of the 1997 Rules of Civil Procedure
(as amended by SC Circular No. 48-2000).
_____________________________________

Supreme Court ruling in GR No. 145947 (Philippine Ports Authority vs.

Pier 8 Arrastre and Stevedoring Services, Inc.) dismissed the Petition for failure
of the verification to conform with the requirements of Section 4, Rule 7 of the
1997 Rules of Civil Procedure (as amended by SC Circular No. 48-2000: “that

1
Annex 1 – Opposition dated 4/5/05 to Rozal’s Motion for Reconsideration
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the affiant has read the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic records.”

The petition must contain a verification prescribed in Section 4, Rule 7 of

the 1997 Rules of Civil Procedure, as amended by SC Circular No. 48-2000:
“that the affiant has read the pleading and that the allegations therein are
true and correct of his personal knowledge or based on authentic records.”

SC Circular No. 48-2000, amending Sec. 4, Rule 7 of the 1997 Rules of

Civil Procedure, clearly states:

“A pleading required to be verified which contains a

verification based on “information and belief,” or upon “knowledge,
information and belief,” or lacks a proper verification, shall be
treated as an unsigned pleading.”

Perusal of the Verification2 of Rozal’s petition would show sufficient

ground to dismiss it on procedural and substantive errors, as its verification
states:

1. xxx

2. I have caused the preparation and filing of this Petition for

Certiorari before the Honorable Court of Appeals. I have read the
allegations of the Petition and the same are true and correct to my
knowledge and the records in my possession.”

x-x-x

2. Public respondent acted in

complete accord with law and
did not abuse its discretion.
In the instant case, the petitioner
wants to correct a perceived error
of judgment, not error of jurisdiction.
____________________________

The facts above show that certiorari does not lie against the questioned
Resolutions of the public respondent. For an abuse of discretion to justify a
review by certiorari, the same must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner and by reason of passion and hostility.

2
Annex 2 – Verification of Manuel Rozal, page 27 of Petitition
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(Commission on Internal Revenue vs. Court of Appeals, 257 SCRA 2000 (1996).
The action of the public respondent to reconsider and set aside its own decision
dated 31 August 2004 was in contemplation of law and conforms with the facts
and law of the decision dated 14 November 2003 of the Honorable Labor Arbiter.
The public respondent took a cursory second glance at the circumstances
obtaining in the instant case and saw that the Labor Arbiter was correct to rule
that there was no employer-employee relationship between the complainant and
private respondent.

Petitioner claims that it was grave abuse of discretion for public

respondent to correct its own decision dated 31 August 2004 finding employer-
employee relationship between petitioner and private respondent.

The special civil action of certiorari is not a remedy designed for correction
of errors of judgment. (Azores vs. SEC, 252 SCRA 387 (1996); Ramnani vs CA, 221
SCRA 582 (1993).

For an abuse of discretion to justify a review by certiorari, the same must

have been grave, which means such capricious and whimsical exercise of
judgment as might be equivalent to lack of jurisdiction. ( Abig vs. Constantino, 2
SCRA 299).

The action of the public respondent may not be characterized as

capricious or whimsical since it is clear from the facts and other considerations
that the motion for reconsideration filed by petitioner clearly lacks factual and
legal basis and was correctly denied. The judicious action of the public
respondent is well described in par. 2, page 2 of the assailed 31 May 2005
Resolution itself: “A closer look of complainant’s position is indubitably
misplaced in the light of the obtaining facts and circumstances.”

The Resolutions of the public respondent reconsidering its own decision

would clearly show that public respondent has judiciously resolved to correct its
own erroneous judgment, and thereby affirming the decision of the Labor Arbiter
that there was indeed no employer-employee relationship between the petitioner
and private respondent the proper and appropriate remedy of the petitioner was
to institute a complaint against the estate of decedent Jaime B. Valida, Sr. and
not the younger private respondent.
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Thus, there was no merit to the motion for reconsideration of the petitioner
when he stated in par. 18 thereof that “xxx being a son of Jaime B. Valida Sr., he
is an heir of Jaime B. Valida and as such succeeded in the business. Rather, the
public respondent gave weight to the opposition to the motion for reconsideration
of the private respondent, which averred in par. 5 thereof that “xxx respondent is
not the only heir of the estate of the decedent as there are other indispensable
siblings…”

WHEREFORE, private respondent prays that the petition be dismissed

forthwith.

Private respondent prays for such other relief just and equitable under the
premises.

Tacloban City for Cebu City. 13 October 2005.

LEO S. GIRON
Counsel for Private Respondent
253 Avenida Veteranos, Tacloban City
Roll No. 37379
IBP Lifetime No. 00733
PTR No. 5803034; 1-3-05; Tacloban City

COPY FURNISHED: Reg. Mail with Return Card

Atty.Jennifer Y. Verzosa
Counsel for the Petitioner
2/F Metrobank Bldg.
P. Burgos St., Tacloban City

NLRC 4th Division

Public Respondent
2F Orient Bldg.
Gen. Echavez-San Miguel Sts.
Cebu City

EXPLANATION

Seven copies of the Comment (with annexes) are filed with the Court of
Appeals, Cebu City, by registered mail, personal filing being impractical due to
constraints of time and distance. A copy each of the same Comment are
furnished the opposing counsel and public respondent NLRC 4 th Division by
separate registered mail for the same reasons.
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LEO S. GIRON