563 Phil. 671
Before this Court is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court, assailing the December 5, 2002 Court of Appeals (CA) Resolution,
[1] which dismissed the petition for
certiorari
docketed as CA-G.R. SP No. 74036, for lack of written explanation why
it was not personally filed; and the April 4, 2003 CA Resolution,
[2] denying the motion for reconsideration.
Briefly, the material facts are:
Alex M. Cadornigara (petitioner) filed with the National Labor Relations Commission (NLRC) a complaint
[3]
against his employer, Escobal Naviera Co., S.A., represented by
Amethyst Shipping Co., Inc. (respondents), for permanent total
disability compensation and damages. The Labor Arbiter (NLRC)
dismissed the complaint in a Decision
[4] dated August 30, 2001. Petitioner appealed,
[5] but the NLRC denied the same in its Resolution
[6] of June 20, 2002. Petitioner filed a motion for reconsideration
[7] which the NLRC denied in its August 30, 2002 Resolution,
[8] a copy of which petitioner received on July 17, 2002.
[9]
After receiving a copy of the August 30, 2002 NLRC Resolution on September 19, 2002,
[10] petitioner filed with the CA a petition for
certiorari[11] under Rule 65 of the Rules of Court. The CA issued the questioned December 5, 2002 Resolution, dismissing the petition for
certiorari, to wit:
For failing to contain a written explanation why this
petition was not filed personally (but rather by registered mail), it
appearing that personal filing was still very much practicable
considering that the office of petitioner’s counsel is only a walking distance from the court at the 12th Floor, Antonino Bldg., T.M. Kalaw, Ermita, Manila, and that the petition is dated November 15, 2002 yet, this petition is ordered DISMISSED.
The law required that filing of pleadings be done personally and only
when personal filing is not practicable that resort to other modes of
filing is allowed. If accompanied by a genuine and real reason why
personal service was not practicable (Section
11, Rule 13 Rules of Civil Procedure, and the ruling in Solar Team
Entertainment, Inc. vs. Ricafort, 293 SCRA 661 [1998]), not just any reason however flimsy it may be.
SO ORDERED.[12]
Petitioner filed a motion for reconsideration,
[13]
explaining that, all along, his counsel was under “the impression or
misimpression [that] the petition would be personally filed by his Law
Office,” but in the end, the said law office had to resort to filing by
registered mail because its office-server, Mr. Rizaldo D. Lagunilla,
failed to reach the CA before closing time.
[14]
In the questioned Resolution dated April 4, 2003, the CA denied petitioner’s motion for reconsideration:
The explanation is bereft of truth. Clearly shown in the Affidavit of Service attached to the petition (p. 23, Rollo)
that petitioner had no intention to personally file and serve this
petition, thereby contemptuously betraying the justification in his
motion. The affidavit of service categorically states “[t]hat on
November 18, 2002, I served a copy of the PETITION FOR CERTIORARI in
the case entitled ALEX CADORNIGARA vs. NATIONAL LABOR RELATIONS
COMMISSION, ET AL., C.A. G.R. NO. ________ dated November 15, 2002, by registered mail”
to the Court of Appeals, National Labor Relations Commission, Office of
the Solicitor General and Del Rosario & Del Rosario.
ACCORDINGLY, petitioner’s Motion for Reconsideration dated January 21, 2001 is DENIED.
SO ORDERED.[15]
Hence, the present petition on this sole ground:
The petitioner submits that the dismissal by the Honorable
Court of Appeals of his Petition for Certiorari on purely technical
ground grossly violated HIS right to due process and unduly deprived
him of the opportunity to establish the merits of his petition.[16]
Petitioner is misinformed.
When we crafted Section 11, Rule 13 of the Rules of Court:
Priorities in modes of service and filing. – Whenever practicable, the service and filing
of pleadings and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to other modes
must be accompanied by a written explanation why the service or filing
was not done personally. A violation of this rule may be cause to
consider the paper as not filed.
we did not intend it to be just some silly rule the parties can ignore when convenient, and the courts disregard when expedient.
[17]
We designed it to serve a very real purpose: to ensure that pleadings,
motions and other papers reach the courts directly and promptly, so
that they may be acted upon expeditiously; and to forestall the
deplorable practice among some lawyers of serving or filing pleadings
by mail to catch their opposing counsel off-guard. Thus, these lawyers
leave the opposing counsel with little or no time to respond
accordingly; or, upon receiving notice from the post office of the
registered parcel containing the pleading or other papers from the
adverse party, the latter may unduly procrastinate before claiming said
parcel -- or, worse, not claim it at all -- and thereby cause undue
delay in the disposition of such pleading or other papers.
[18]
Under said rule, personal service and filing of pleadings and other
papers is a mandatory mode, especially when the peculiar circumstances
of the case -- such as the proximity of the office of a party's counsel
to the court or to the office of the opposing party's counsel -- make
such mode practicable.
[19]
If another mode is employed, there must be attached to the pleading or
paper, a written explanation of such recourse. Omission of a written
explanation will give the court cause to expunge the pleading or paper
not personally served or filed.
[20]
And ordinarily, such exercise of discretion by the court will not be
overruled on appeal, except when: a) on the face of the affidavit of
service, it is patent that personal service and filing is impractical,
such as when the parties or their counsels live in different provinces;
[21] b) there is
prima facie merit in the pleading or paper expunged;
[22] and c) the issue raised therein is of substantial importance.
[23]
Under these exceptional circumstances the lack of written explanation
may be excused and the pleading or paper served or filed, accepted.
In the present case, the petition for
certiorari
filed with the CA clearly indicates that the office of petitioner's
counsel (Linsangan Law Office) is located at the 12th Floor Antonino
Bldg., T.M. Kalaw, Ermita, Manila; while that of respondents' counsel
(Del Rosario and Del Rosario Law Offices) is located at 107 Herrera
cor. Esteban Street, Legaspi Village, Makati City.
[24] Yet, petitioner filed the petition for
certiorari
with the CA and served copies thereof on the other parties, all by
registered mail. He did append a written explanation to his petition
for
certiorari but it merely states:
EXPLANATION:
In compliance with Section 11, Rule 13, 1997 Rules of Civil Procedure,
it is hereby explained that the foregoing pleading is being served by registered mail upon the other parties, personal service not being practicable due to time constraint. (Emphasis added)
It does not include an explanation as to why the filing with the CA was also done by registered mail.
The foregoing circumstances considered, we cannot fault the CA for not accepting the petition for
certiorari. In
Tagabi v. Tangue,
[25]
we upheld the CA for dismissing an appeal that lacked a written
explanation of why it was filed by registered mail, even when in said
case, petitioner's counsel held office in Iloilo City and found it
impractical to personally file the appeal brief with the CA in Manila.
With more reason, we cannot excuse herein petitioner's lapse. It is of
judicial notice that the Linsangan Law Office in Ermita, Manila is
virtually a stone's throw away from the CA in Ma. Orosa, Manila. The
distance between the Linsangan Law Office and the Central Post Office
in Manila is approximately ten times farther than that between said law
office to the CA. Thus, petitioner's filing of the petition by
registered mail through the Central Post Office was actually the more
circuitous and impractical course.
Worse, such error was compounded when, in his motion for
reconsideration from the December 5, 2002 CA Resolution, petitioner
made no effort at all to correct the deficiency and substantially
comply with Section 11 of Rule 13 by attaching, even if belatedly, the
omitted written explanation. Instead, petitioner foisted upon the CA
an untruthful explanation: that his counsel initially intended to
personally file the petition with the CA, but that his counsel's
office-server failed to reach the court before closing time. As the CA
astutely observed, such explanation is contradicted by the affidavit of
service attached to the petition, which stated that it was being filed
by registered mail.
[26]
In fine, the CA acted within the bounds of its discretion under Section 11 of Rule 13 in refusing to accept the petition for
certiorari for failure of petitioner to attach a written explanation of non-personal filing.
That said, we will nonetheless resolve the main issue involved if only to demonstrate that the petition also lacks substance.
Part of the employment contract of petitioner is Section 20-B of the POEA-Standard Employment Contract, which reads:
Section 20-B. Compensation and Benefits for Injury and Illness. - The liabilities of the employer when the seafarer suffers injury or illness
x x x x
- Upon sign-off from the vessel for medical treatment, the
seafarer is entitled to sickness allowance equivalent to his basic wage
until he is declared fit to work or the degree of permanent disability
has been assessed by the company-designated physician but in no case
shall this period exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a
post-employment medical examination by a company-designated physician
within three working days upon his return except when he is physically
incapacitated to do so, in which case, a written notice to the agency
within the same period is deemed as compliance. Failure of the
seafarer to comply with the mandatory reporting requirement shall
result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a
third doctor may be agreed jointly between the employer and the
seafarer. The third doctor’s decision shall be final and binding on
both parties.
x x x x
- In case of permanent total or partial disability of the seafarer
during the term of his employment caused by either injury or illness,
the seafarer shall be compensated in accordance with the schedule of
benefits enumerated in Section 30 of his Contract. Computation of his
benefits arising from an illness or disease shall be governed by the
rates and the rules of compensation applicable at the time the illness
or disease was contracted.
Under said provision, petitioner may claim two forms of monetary compensation or benefit:
First, sickness allowance from the date of his sign-off for
medical treatment to the date he is declared fit to work or the degree
of his permanent disability is assessed by a company-designated
physician. In no case shall sickness allowance be paid for a period
exceeding 120 days;[27] and/or
Second, any of the three kinds of disability benefits granted under the
Labor Code, as implemented by Section 2, Rule VII of the Implementing
Rules of Book V.[28]
Petitioner has been paid sickness allowance.
[29] The question is whether he should also be paid disability benefits.
As provided under Section 20-B of the POEA-SEC, it is the
company-designated physician who must certify that petitioner has
suffered a permanent disability, whether total or partial, due to
either injury or illness, during the term of his employment.
[30] While such certification is not conclusive,
[31] to impugn the same, petitioner must indicate facts or evidence of record that contradict such finding
[32] or present the contrary opinion of his appointed physician.
[33]
It is of record that right after his repatriation on October 26, 1999,
[34]
petitioner underwent regular treatment by Dr. Nicomedes Cruz, a
company-designated physician. Petitioner's treatment lasted for
approximately 96 days or from October 27, 1999 until February 2, 2000,
[35] when he was declared by Dr. Cruz already fit to work.
[36]
Petitioner did not report for work; however, he did not dispute the
findings of Dr. Cruz nor did he seek the opinion of another doctor.
Instead, petitioner filed against respondents a complaint for total
and permanent disability compensation. While his complaint was
pending, petitioner sought an order from the LA to submit him to
medical examination by a government doctor coming from the Employees’
Compensation Commission (ECC).
Both the LA
[37] and the NLRC
[38]
denied petitioner's claim on the ground that he failed to controvert
the certification issued by Dr. Cruz that he is fit to work.
We completely agree. It is noted that petitioner took six months
before disputing the finding of Dr. Cruz by filing a complaint for
disability benefits. Worse, in his complaint, petitioner averred that
he continued to undergo therapy and medication even after Dr. Cruz
certified him fit to work.
[39]
Yet, petitioner did not secure from the doctors who administered such
therapy and medication a certification that would contradict that of
Dr. Cruz. Rather, he waited another month to manifest to the LA that he
be examined by a government doctor. Such request is not reasonable.
As we observed in
Sarocam v. Interorient Maritime Ent. Inc.,
[40]
it makes no sense to compare the certification of a company-designated
physician with that of an employee-appointed physician if the former is
dated seven to eight months earlier than the latter -- there would be
no basis for comparison at all.
WHEREFORE, the petition is
DENIED for utter lack of merit.
Costs against petitioner.
SO ORDERED.
Ynares-Santiago, (Chairperson), Chico-Nazario, Nachura, and
Reyes, JJ., concur.
[1] Penned by Associate
Justice Conrado M. Vasquez, Jr., with the concurrence of Associate
Justices Elvi John S. Asuncion and Sergio L. Pestaño;
rollo, p. 30.
[2] Id. at 33.
[3] CA
rollo, p. 48.
[4] Id. at 133
[5] Id. at 163.
[6] Id. at 24.
[7] Id. at 38.
[8] Id. at 36.
[9] Petition, CA
rollo, p. 4.
[10] Id.
[11] Id. at 2.
[12] Id. at 30.
[13] CA
rollo, p. 209.
[14] Id. at 211.
[15] Id. at 33.
[16] Petition,
rollo, p. 15.
[17] Deliverio v. Galicinao, G.R. No. 133704, September 18, 2001.
[18] Penoso v. Dona, G.R. No. 154018, April 03, 2007.
[19] Coca-Cola Bottler's Philippines, Inc., v. Cabalo, G.R. No. 144180, January 30, 2006, 480 SCRA 548, 559.
[20] MC Engineering, Inc. v. National Labor Relations Commission, 412 Phil. 614, 624 (2001).
[21] Maceda v. Macatangay, G.R. No. 164947, January 31, 2006, 481 SCRA 415, 424
[22] Penoso v. Dona, G.R. No. 154018, April 3, 2007.
[23] Ello v. Court of Appeals, G.R. No. 141255, June 21, 2005,460 SCRA 406, 415.
[24] Petition, CA
rollo, p. 4.
[25] G.R. No. 144024, July 27, 2006, 496 SCRA 622.
[26] CA
rollo, p. 23.
[27] See
Cabuyoc v. Inter-Orient Navigation Shipmanagement, Inc., G.R. No. 166649, November 24, 2006, 508 SCRA 87.
[28] Remigio v. National Labor Relations Commission, G.R. No. 159887, April 12, 2006, 487 SCRA 190, 209.
[29] Id. at 214.
[30] German Marine Agencies, Inc., v. National Labor Relations Commission, 403 Phil. 572, 587 (2001).
[31] Seagull Maritime Corp. v. Dee, G.R. No. 165156, April 20, 2007.
[32] Micronesia v. Cantomayor, G.R. No. 156573, June 19, 2007.
[33] Supra note 28, at 209.
[34] CA
rollo, p. 115.
[35] Id. at 108-115.
[36] Id. at 115.
[37] LA Decision, CA
rollo, pp. 159-160.
[38] NLRC Resolution, CA
rollo, p. 34.
[39] Position Paper, p. 51.
[40] G.R. No. 167813, June 27, 2006, 493 SCRA 502.