Republic of the Philippines

COURT OF APPEALS
Manila

LANY A. CESTONA, ET.AL.,

Petitioners,

-versus- C.A-G.R. SP No. 114535

NATIONAL LABOR RELATIONS

COMMISSION (2ND DIVISION),
JEM HOSPITAL EQUIPMENT
SERVICE AND SUPPLY, ET. AL.,
Respondents,
x-----------------------------------------x

Respondents through counsel and unto this Honorable Court most

respectfully submit the following –

ENTRY OF APPEARANCE AND

COMMENT TO THE PETITIONER’S
PETITION FOR CERTIORARI

and hereto state, viz –

FORMAL ENTRY OF APPEARANCE

The services of the undersigned counsel had just been engaged by

the respondents. Thus, summons, orders, notices or other processes
emanating from this Honorable Court be furnished through counsel at:

BASA BALAGTEY LAW OFFFICES

1 Flr. Abriol Bldg. Benitez Court Compound,
st

Magsaysay Avenue, Baguio City, 2600.

 COMMENT TO THE PETITION

The issues raised by petitioners

are mere repetitions of the issues
which were already passed upon
by the Labor Arbiter and by the
public respondent on appeal and
on motion for reconsideration.

It had been said time and again by no less than the Supreme Court
that the factual findings of the NLRC affirming those of the Labor Arbiter
who are deemed to have acquired expertise in matters within their
jurisdiction are accorded respect if not finality.1

Findings of fact of administrative agencies and quasi-judicial bodies

which have acquired expertise because their jurisdiction is confined to
specific matters, are generally accorded not only great respect but even
finality. They are binding upon this Court unless there is a showing of
grave abuse of discretion or where it is clearly shown that they were
arrived at arbitrarily or in utter disregard of the evidence on record. 2

In the instant case is there grave abuse of discretion on the part of

the Labor Arbiter and the Second Division of the National Labor Relations
Commission? It appears none.

Kindly allow as the reiterate the relevant antecedents prior to this

instant petition.

On august 11, 2010, the Labor Arbiter of the NLRC-CAR issued an

Order.

The August 11, 2009 Order of the NLRC-CAR deserves no further

legal interpretation. In explaining why Edwin Mora and Marie Joyce

1
Pilar Espina vs. Court of Appeals vs. Hon. Court of Appeals, G.R. No. 164582, March 28, 2007
2
Citibank, N.A. vs. NLRC, et al., G.R. No. 159302, February 6, 2008
Duntogan are not solidarily liable with JEM Hospital and Equipment Service
and Supply, the Labor Arbiter has this to say, to wit:

“A perusal of the entire record will readily show that the

respondent in the above-entitled case is the JEM Hospital Equipment,
Service and Supply ONLY. The owner, Edwin Mora, was not
impleaded. All the decisions rendered – from the Labor Arbiter to the
Court of Appeals – DID NOT state that this Edwin Mora shall be
solidarily liable with his business establishment. It is a tenet in law
that the business establishment, once duly registered, has a separate
personality from that of the owner thereof – whether a natural or a
juridical person. There being no specific ruling that Edwin Mora shall
be personally liable for the obligations of his business, and still
maintaining his separate personality, he cannot be personally made
liable for these obligations. Neither therefore can his conjugal
properties be the subject of garnishment and/or levy. And most of
all, neither should his wife’s properties and business be automatically
garnished and/or levied upon, considering that this Court never had
jurisdiction over her by its lawful processes or by any form of
voluntary surrender into it. Should the complainants’ wish be
followed, it would be tantamount to deprivation of property without
due process, contrary to law, policy and public morals.

The respondent establishment – JEM Hospital Equipment,

Service and Supply – lawfully closed business in the year 2007. Marie
Joyce Duntugan Mora established a new business under a different
name and under a different registration on January 2009 and issued
a Business Permit in March 2009. Clearly, the Writ of Execution
cannot be implemented against Marie Joyce Duntugan Mora or her
separate business. The complainants had not given an iota of
evidence for the basis of piercing the corporate veil to merit the grant
of their motion”

On appeal and in reinforcing the Order of the Labor Arbiter, public

respondent National Labor Relations Commission held, that:

“Sec. 2, par. 2, Rule III of the 2005 Revised rules of

Procedure of the NLRC provides - The full names of
 all the real parties in interest, whether natural or
juridical persons or entities authorized by law shall
be stated in the caption of the complaint or petition
as well as in the decision, resolution or orders of the
Labor Arbiter of the Commission.”

Applying the above provision, the NLRC went on to say that – the
mere mention of Edwin Mora in the “pro forma” complaint does not
automatically include a person or entity as party to a case. There must be
a determination of the real parties in interest or an Order granting his or its
inclusion as party respondent, in the event that an amended complaint was
filed.

Armoring Sec. 2, par. 2, Rule III of 2005 of the Revised rules of

Procedure of the NLRC, public respondent NLRC added the provisions of
Sec. 3, Rule V of the same Rules which provides that:

“Section 3. Mandatory Conciliation and Mediation

Conference. – a) The mandatory conciliation and
mediation conference shall be called for the purpose
of (1) amicably settling the case upon a fair
compromise; (2) determining the real parties in
interest; (3) determining the necessity of amending
the complaint and including all causes of action; (4)
defining and simplifying the issues in the case; (5)
entering into admissions or stipulations of facts; and
(6) threshing out all other preliminary matters. –
xxxx- (underscoring supplied by the NLRC)

Thus, the NLRC concluded that since Edwin Mora, owner of JEM
Hospital Equipment, Service and Supply, JEM Hospital Equipment and
Medical Supplies and its owner, Marie Joyce Duntugan, based on the
caption and dispositions of the Labor Arbiter in his Decision or Orders, are
not party respondents in this case nor adjudged jointly and solidarily with
respondent JEM Hospital Equipment Service and Supply, the Order had
definitely conformed to that ordained or decreed in the said Order.
 To back up the above conclusion, the NLRC cited the case of
Foremost Incorporated vs. Department of Labor and Employment, et. al.
G.R Nos. 84985-86, December 11, 1995 which states as follows:

“It is fundamental that execution must conform to

the ordained or decreed in the dispositive part of
the decision. An order of execution which varies the
tenor of the judgment or exceeds the terms thereof,
is nullity”

Likewise, the case of De Guzman vs. Ong, 304 SCRA 206, provides:

“Execution may only be effected against the

property of the judgment debtor who must
necessarily be a party in the case.”
 These factual findings of the Labor Arbiter and the NLRC, affirmed by the Court
of Appeals, are accorded high respect by this Court. It bears stressing that this Court is
not a trier of facts. Hence, it need not pass upon and evaluate the factual findings of the
Court of Appeals, unless they are not supported by evidence, which exception is not
present here. (Bacos vs. Arcega, GR No 152343, January 18, 2008)

Settled is the rule that the findings of the LA, when affirmed by the NLRC and the
CA, are binding on the Supreme Court, unless patently erroneous. It is not the function
of the Supreme Court to analyze or weigh all over again the evidence already
considered in the proceedings below. In a petition for review on certiorari, this Court’s
jurisdiction is limited to reviewing errors of law in the absence of any showing that the
factual findings complained of are devoid of support in the records or are glaringly
erroneous. Firm is the doctrine that this Court is not a trier of facts, and this applies with
greater force in labor cases. Findings of fact of administrative agencies and quasi-
judicial bodies, which have acquired expertise because their jurisdiction is confined to
specific matters, are generally accorded not only great respect but even finality. They
are binding upon this Court unless there is a showing of grave abuse of discretion or
where it is clearly shown that they were arrived at arbitrarily or in utter disregard of the
evidence on record. We find none of these exceptions in the present case. (Letran
Calamba Faculty and Employees Association vs. NLRC, et al., G.R. No. 156225,
January 29, 2008)

While findings of fact in administrative decisions such as those rendered by the

NLRC are to be accorded not only great weight and respect, but even finality, the rule
only applies for as long as these findings are supported by substantial evidence. In the
present case, the NLRC was absolutely silent on why it did not give credence to
petitioner’s evidence on respondent’s misconduct. It was content merely to state that
“the separation is not for reasons of misconduct but for other grounds” without any
substantiation and in total disregard of the evidence proffered by petitioner. Colegio de
San Juan de Letran-Calamba v. Villas [447 Phil. 692, 700 (2003)] instructs:

Likewise, findings of fact of administrative agencies and quasi-

judicial bodies which have acquired expertise because their jurisdiction is
confined to specific matters, are generally accorded not only great respect
but even finality. They are binding upon this Court unless there is a
showing of grave abuse of discretion or where it is clearly shown
that they were arrived at arbitrarily or in utter disregard of the
evidence on record. (Emphasis and underscoring supplied)(Citibank,
N.A. vs. NLRC, et al., G.R. No. 159302, February 6, 2008)

Rule 45 of the Rules of Court provides that only questions of law may be raised in a
petition for review on certiorari. The raison d'etre is that the Court is not a trier of facts. It is
not to re-examine and re-evaluate the evidence on record. The general rule is that the
factual findings of the NLRC, as affirmed by the CA, are accorded high respect and finality
unless the factual findings and conclusions of the LA clash with those of the NLRC and the
CA, as it appears in this case. Thus we have to review the records and the arguments of the
parties to resolve the factual issues and render substantial justice to the parties. (Norkis
Trading Co., et al. vs. Melvin Gnilo, G.R. No. 159730, February 11,2008)
 It is well settled that findings of fact of quasi-judicial agencies, like the NLRC, are
accorded not only respect but even finality if the findings are supported by substantial
evidence. This is especially so when such findings of the labor arbiter were affirmed by
the CA. However, this is not an iron-clad rule. Though the findings of fact by the labor
arbiter may have been affirmed and adopted by the NLRC and the CA as in this case, it
cannot divest the Court of its authority to review the findings of fact of the lower courts
or quasi-judicial agencies when it sees that justice has not been served, more so when
the lower courts or quasi-judicial agencies’ findings are contrary to the evidence on
record or fail to appreciate relevant and substantial evidence presented before it. (R.B.
Michael Press, et al. vs. Nicasio C. Galit, G.R. No. 153510, February 13, 2008)

The findings of facts of the CA are as a general rule, conclusive and binding on
the Supreme Court. Our power of review is limited to questions of law. It is well
established that the Court is not a trier of facts and does not routinely undertake the re-
examination of the evidence presented by the contending parties during the trial of the
case.

The Court, however, may determine the factual milieu of cases or controversies
under specific circumstances, as follows:

(1) when the inference made is manifestly mistaken, absurd or

impossible;

(2) when there is a grave abuse of discretion;

(3) when the finding is grounded entirely on speculations, surmises or

conjectures;

(4) when the judgment of the Court of Appeals is based on

misapprehension of facts;

(5) when the findings of fact are conflicting;

(6) when the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both
appellant and appellee;

(7) when the findings of the Court of Appeals are contrary to those of the
trial court;

(8) when the findings of fact are conclusions without citation of specific
evidence on which they are based;

(9) when the Court of Appeals manifestly overlooked certain relevant

facts not disputed by the parties and which, if properly considered,
would justify a different conclusion; and

(10)when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted by the evidence on record.

(Cosmos Bottling Corporation vs. Pablo Nagrama, Jr., G.R. No. 164403, March
4, 2008)
 We reiterate the dictum that this Court is not a trier of facts, and this doctrine
applies with greater force in labor cases. Factual questions are for the labor tribunals to
resolve. In this case, the factual issues were resolved by the Labor Arbiter and the
NLRC. Their findings were affirmed by the Court of Appeals. Judicial review by this
Court does not extend to a reevaluation of the sufficiency of the evidence upon which
the proper labor tribunal has based its determination. (Flourish Maritime Shipping, et al.
vs. Donato A. Almanzor, G.R. No. 177948, March 14, 2008)

IT IS A REITERATION OF THOSE ALREADY PASSED

UPON BY THE LABOR ARBITER AND BY THE PUBLIC
RESPONDENT ON APPEAL AND ON MOTION FOR
RECONSIDERATION. IT HAD BEEN SAID TIME AND
AGAIN BY NO LESS THAN THE SUPREME COURT THAT
THE FACTUAL FINDINGS OF THE NLRC AFFIRMING
THOSE OF THE LABOR ARBITER WHO ARE DEEMED
TO HAVE ACQUIRED EXPERTISE IN MATTERS WITHIN
THEIR JURISDICTION ARE ACCORDED RESPECT IF
NOT FINALITY (Pilar Espina vs. Court of Appeals vs.
Hon. Court of Appeals, G.R. No. 164582, March 28, 2007).
The instant Petition for Certiorari
was filed beyond the sixty (60) day
period within which to file the
petition as required by Sec. 2 in
relation to Sec. 3, Rule 65, of the
Rules of Court.

It is apparent in the petitioner’s certiorari that the material dates of

the receipt of the NLRC order or resolution denying petitioners’ Motion for
Reconsideration and the date when petitioners filed the instant petition is
not present. This would only suggest that the petition was filed out of time
or was filed beyond the sixty (60) day period required by law.

It is a basic rule in law specifically the rule on appeal by certiorari

that failure to comply with formal requisite is fatal. The highest court of the
land, in a catena of cases states:

“A petition is fatally defective if it fails to comply

with Section 1 of Rule 65 or to allege facts with
certainty, or to attach certified true copies of the
order sought to be annulled.” 3

Thus, the instant petition deserves outright dismissal on the ground

of prescription.

3
Iligan Concrete Products vs. Magadan, 157 SCRA 525, 1988; Asuncion vs. C.A, 166 SCRA 55, 1988;
Catuira vs. C.A, 172 SCRA 136, 1989 and Benez vs. C.A, 270 SCRA 20.