Republic of the Philippines
COURT OF APPEALS
Manila
_____ DIVISION
Lilian C. Abrio, C.A. G.R. No.___________
Petitioner, (NLRC LAC No. 07-001996-09)
(NLRC CASE SRAB-IV-01-00012-09)
-VS- For: CERTIORARI UNDER RULE 65
NATIONAL LABOR RELATIONS
COMMISSION (FIRST DIVISION),
TRINITY FRANCHISING & MANAGEMENT
CORPORATION/ ARNULFO C. ROMERO
Respondents.
X-----------------------------------------X
COMMENT TO PETITION FOR CERTIORARI
Private respondents TRINITY FRANCHISING AND MANAGEMENT CORPORATION/
ARNULFO C. ROMERO, thru counsel, to this Honorable Court of Appeals, by way of
compliance to Resolution dated 27 May 2010 to comment on the petition, respectfully
set forth that:
1. It has to be stressed that in a Petition for Certiorari under Rule 65 of the
Rules of Court, the only issue to be resolved is whether or not the tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law.
2. In this particular case, petitioner seeks to nullify and set aside the
Resolution dated 29 January 2010 denying the petitioner’s motion for Reconsideration.
3. Private respondents humbly submit that the petition should be denied for
the following reasons:
3.a) Contrary to petitioner’s contention, the
dismissal of her appeal on technical ground is in
accord with the applicable laws and prevailing
jurisprudence. The certification of no-forum
shopping as required by Supreme Court
Administrative Circular No. 04-941 is mandatory
even in labor cases. It should accompany pleadings
filed before the National Labor relations Commission
(NLRC) since the NLRC is a quasi-judicial agency.
Failure to comply with the Circular warrants
dismissal because defect cannot be cured by
amendment;
1
ADDITIONAL REQUISITES FOR CIVIL COMPLAINTS, PETITIONS AND OTHER INITIATORY PLEADINGS FILED IN ALL
COURTS AND AGENCIES OTHER THAN THE SUPREME COURT AND THE COURT OF APPEALS , TYO PREVENT FORUM
SHOPPING OR MULTIPLE FILING OF SUCH PLEADINGS:February 8, 1994( took effect on April 1, 1994)
3.b) Section 5 Rule 7 of the Rules of Court
specifically provides:
“Certification against forum shopping-
The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith:
(a) that he has not theretofore commenced any
action or filed any claim involving the same issues in
any court, tribunal or quasi-judicial agency and, to
the best of his knowledge, no such other action or
claim is pending therein; (b) if there is such other
pending action or claim, a complete statement of
the present status thereof; and (c) if he should
thereafter learn that the same or similar action or
claim has been filed or is pending, he shall report
that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory
pleading has been filed.
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided,
upon motion and after hearing. The submission, of a
false certification or non-compliance with any of the
undertakings therein shall constitute indirect
contempt of court, without prejudice to the
corresponding administrative and criminal actions. If
the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same
shall be ground for summary dismissal with
prejudice and shall constitute direct contempt, as
well as a cause for administrative sanctions.”
3.c) The Supreme Court has established in
previous cases2 that compliance with the Circular
was mandatory even in labor cases. In the landmark
case of Maricalum Mining Corporation vs. NLRC 3 the
Supreme Court held that:
“ The Certificate of non-forum shopping as provided
by this Court Circular 04-94 is mandatory and
should accompany pleadings filed before the
National Labor Relations Commission. Court Circular
No. 04-94 is clear and needs no further
interpretation, viz:
… the following requirements, in addition to those
in pertinent provisions of the Rules of Court and
other existing circulars, shall be strictly complied
with in the filing of the complaints, petitions,
applications or other initiatory pleading in all court
and agencies other than the Supreme Court and the
2
Canuto Jr. Vs. NLRC, G.R. Bo. 110914, 28 June 2001, 360 SCRA 52; MC Engineering Inc. vs. NLRC,
G.R. No. 142314, 28 June 2001, 360 SCRA 183; Melo vs. Court of Appeals, G.R. No. 123686, 16 November 1999
318 SCRA 94.
3
G.R. No. 124711, 298 SCRA 278, 384, (1998). Reiterated in the case of Roxas vs. Court of Appeals, G.R. No. 139337,
363 SCRA 207, (2001) and HUNTINGTON STEEL PRODUCTS, INC. vs. NLRC, G.R. No. 158311, November 17, 2004.
Court of Appeals, and shall be subject to the
sanctions provided hereunder:
“ 1. The plaintiff, petitioner or applicant or principal
party seeking relief in the complaint , petition,
application or othjer initiatory pleading, shall certify
under oath in such original pleading, or in a sworn
certificate annexed thereto and simultaneously
therewith, to the truth of the following facts and
undertakings: (a) he has not heretofore commenced
any other action or proceeding involving the same
issues in the Supreme Court, the Court of Appeals.
Or any other tribunal or agency; (b) to the best of
his knowledge, no such action or proceeding is
pending in the Supreme Court, Court of Appeals, or
any other tribunal or agency; (c) if there is any such
action or proceeding whis is either pending or may
have been terminated, he must state the status
thereof ; and(d) if he should thereafter learn that a
similar action or proceeding have been filed or is
pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, he
undertakes to report the fact within five ( 5) days
therefrom to the court agency wherein the original
pleading and sworn certification contemplated
herein have been filed.
“2. Any violation of this Circular shall be a cause for
the dismissal of the complaint, petition, application
or other initiatory pleading, upon motion and after
hearing…”
The NLRC is a quasi-judicial agency, hence,
initiatory pleadings filed before it should be
accompanied by a certificate of non-forum
shopping.
4. Moreover, the Court expressly stated in the case of Canuto. Jr. vs NlRC 4, “
In fact we took pain to emphasize in Maricalum Mining Corporation vs. National Labor
Relations Commission5 that compliance with the circular is mandatory even for
labor cases;”
5. Nevertheless, while the cases cited by the petitioner which justified the
liberal application of the technical rules of procedure as well as the relaxation of the
rule regarding Certification on Non-forum Shopping in special circumstances or
compelling reasons, the same are not applicable in the instant case;
5.a) The reason cited by the petitioner LILIAN C. ABRIO
for a review of the RESOLUTON/ORDER dated 29 January
2010 issued by the National Labor Relations Commission is
not a special circumstance and/or compelling reason to
justify the relaxation of the aforesaid rule;
5.b) In fact, the cited reason by the petitioner is off
tangent to the requirement in order to justify her failure to
4
Id.
5
298 SCRA 378,284, (1998)
attach Certification on Non-Forum Shopping because the
same is a mere reiteration of the same arguments relevant
to the merits of her appeal, which is obviously a misplaced
assertion;
5.c) While it is true that in the cited case of Loyola vs.
Court of Appeals ,6 the court consider the filing of the
certification one day after the filing of the election protest,
the same was, however, made within the reglementary
period to file said protest. The Court stated in that case, “
we held that substantial compliance with the requirement
of certificate of non-forum shopping is sufficient. Here we
find that the certificate of non-forum shopping was not
filed simultaneously with the initiatory pleading. But we
held that the filing of the certification within the
reglementary period of filing the initiatory pleading was a
substantial compliance. The fact that the Circular requires
strict compliance merely underscores the mandatory
nature that it cannot be dispensed with or its requirements
altogether disregarded, but it does not thereby interdict
substantial compliance with its provisions under justifiable
circumstances”.7
7. In the case of Ong vs. Court of Appeals, 8 the Supreme Court reiterated the
case of Melo vs. Court of Appeals. 9 which held that, “xxx in those cases where excused
non-compliance with the requirements of Supreme Court Administrative Circular No.
04-94, there were special circumstances or compelling reasons that made the strict
application of said Circular clearly unjustified . The rule is crystal clear and plainly
unambiguous that the certification is a mandatory part of an initiatory pleading, i.e.,
the complaint, and its omission may be excused only upon manifest equitable grounds
proving substantial compliance therewith.”
8. In fine, the instant Petition for Certiorari should be denied for lack of merit.
WHEREFORE, premises considered, it is respectfully prayed of this Honorable
Commission that petitioner’s Petition for Certiorari be DENIED for utter lack of merit.
Legaspi City for Manila, 05 July 2010
BARANDA BUSALLA & MAGISTRADO
LAW OFFICE
3/F Consumer Appliance Bldg.,
Peñaranda St., Legazpi City
By:
6
245 SCRA 477, G.R. No. 117186 (1995)
7
Id. At 483-484. Reiterated in the cases of HUNTINGTON STEEL PRODUCTS, INC. VS. NLRC. Id.;
Young vs. Keng Seng, G.R. No. 143464, 5 March 2003, 417 SCRA 216, 224-225. Ibid.
8
G.R No. 144581, 384 SCRA 139, 146, ( 2002).
9
Id.
MARIANO B. BARANDA, JR.
Counsel for Respondent
PTR. No. 05952400 dtd. 01-06-10
IBP No.759633. 01-05-10
ROLL No. 26948 dtd. 4-29-77
MCLE EXEMPTION NO. 11-002299; 12-10-08
COPY FURNISHED BY REGISTERED MAIL:
Atty. Jeaneth G. San Joaquin
Counsel for petitioner
Duplex 4-C Panganiban Drive, Naga City
Per Registry Receipt No. ___
Attached to the original hereof.
PROOF OF SERVICE WITH EXPLANATION
I, Ma. Cristina Encisa, under oath, state: that I am one of the legal staff in
Baranda, Busalla, and Magistrado Law Office, that on 05 July 2010 due to distance to
effect personal service, I serve by registered mail with return card a copy of the
foregoing Comment to Petition for Certiorari to Atty. Jeaneth G. San Joaquin at Naga
City.
Ma. Cristina Encisa
Affiant
SUBSCRIBED AND SWORN to before me this 5th day of July 2010, in Legazpi City,
Philippines.
