Develos v. Makati Development Corp.

THIRD DIVISION

[G.R. No. 241777. December 10, 2018.]

MICHAEL LLANERA DEVELOS [+], AS SUBSTITUTED BY MARIA LUISA J. HAYAG, CHITO DELAS NIEVES PERICO, DOMINGO ESPINOSA TONADA, JR., ANTONI NAPILI ORA, LUDIVICO PASION MONTERO, JR., JOELITO OMILA VASQUEZ, ALEX TABAR PAIREZ, JUNIPGHER GANTALAO DELOS NIÑOS, DELBERT APALIT DOMINGO, EUGENE LIBANTA LIMAN-AY, ROY DAPIASAN ENCLUNA, ERVIN MALABAR NOYA, RUEL LOPEZ BUO, JARRYSON LAPIS CALAMATE, JIM FRANCIS DACALCAP DULAY, GODOFREDO MATIMTIM LINING, JR., FELIX ACIBAR REGULACION, HEROINE MANING TANUDTANUD, ABELZON ABELLA CUIZON, HILARIO GANIT ESPIRITU, ADONIS FLORES CORREA, DINDO AMADEO VILLARIN, ROLDAN CENAS MAMOLO, JAYRALD CASIDO ROMERAL, RONALD BELANDO SARZA, NIXON FLORES BASAS, JR., RANDY COLANTA SALIGAN, ALEXANDER MARFIL GOLEZ, JOEL DAQUIOAG TAGUIMACON, HERMILANDO TAN ROMINES, JR., RANDY DARI SANGGAYAN, ROBERT DELIMA BONGCAWEL, ROSITITO EROL QUINTERO, JAIME BELTRAN SEDANO, WILMAR TRANSMANO JEBULAN, DANILO GUANLAO BANAWA, MANUEL SANTILLAN FRONDOZO, JR., MARLON CONCEPCION SORIANO, ROLLY ANTOPINA ABDON, ANGEL CAHAGNAAN CASTILLO, MANUEL PARALEJAS LABAO, CHRISTOPHER TEVES SALANG, ERIC AGAPITO REBOSURA, KIM ROMO DELANTAR, JENO CHUA MEJILLANO, RAUL SUMALPONG OCHARON, ADAN LAMATA CLAMOR, JIMMY OLMOGUES EMPASIS, JEFFREY DE VERA GALE, CHRISTOPHER MENDOZA GAUMEDA, DORY USOP TALIB, MARIO VIC ESPINOSA DEL ROSARIO, RONALD CAPUNONG MEDENILLA, WELBOR MAYAO ROTOR, GARY MATEO ERMEJE, ROWAN MANERE TORRES, SR., ARJUN VALLEZ AMET, RODOLFO BELAS DELA CRUZ, JR., RAFFY JATAP BERDIDA, JUNNEL ALICO ARING, RICARDO LOPEZ VALDERRAMA, VINCI DOTILLIOS CONSIGNA, ALFREDO ROXAS FLORES, RONALD ORDANZA LIZARDO, BEN JAMILI CLEMENTE, JUNVIE PANARES JAKOSALEM, CHARMEL TUSOY CATANDEJAN, ISAGANI IBALO REYES, BRIAN VILLA INDANGAN, JOSEPH ADRIAN FRIJOLES GAVARRA, RONALD MALANA REDITO, ALLAN MANLAPAS PELICANO, MARK VALENZUELA GUTIERREZ, GILBERT OMBROG SILVA, NUMERIANO EDUARTE BONGAT, LORENZO DONGSAL DAGALA, ROLLITO BANTILLO DEONDO, SR., TIRSO REDELLAS RAPSING, JUMARK KIMENEZ PEDROSO, GENIL LUNA LLAPITAN, JOMAR CANTOS DOCABO, ARCHIE BUSTAMANTE CATALAN, JEANMAR VELARDE PEDROSA, LYDOR TORCINO TUBAL, BERNARD DE GUZMAN CRUZ, DOMINADOR CANUEL CAS, JR., JESUS AYENCIA EMPLEO, JR., JULIEBERT ANGAS RAMANA, MARCELINO CORPOZ TAGUD, ROEL GARCIANO HUERTA, ROSALIE GULTIAN MENDOZA, RENATO MUYANO CERDAN, GERARDO DOLFO CONTADO, JANREY LABUAN ALJAS, ROGER VIDUYA FERRANDO, CIRILO GENERALAO SINOY, GERARDO DIAMANTE SUSUSCO, RENATO DELIMA BONGCAWEL, ANGELO BRIONES GUMAHIN, EFRIN CONDE MAGLASANG, JANITO SIBONGA GENERALAO, IAN NECOSIA ABANDE, GILBERT SEMENIANO BALIDOY, JIMAN CONSTANILLA LALLEGO, MARK PETER TORRELIZA CAJELO, ROLANDO BALTAZAR SARTAGUDA, JR., NEMESIO BONGYAN SAMSON, JR., NAPOLEON P. SUSUSCO, LITO VALLEJOS, CELSO CHINEDO BALDEDOMAR, JR., ELSON ROBLEDO ALFORTE, CRISPIN RANES NINGWA AND RICHARD LACNO MOLEJON, petitioners, vs.MAKATI DEVELOPMENT CORPORATION, FERDIE M. MANGALI, AND RICHARD Q. JUMAWAN, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated December 10, 2018, which reads as follows:

"G.R. No. 241777 (Michael Llanera Develos [+], as substituted by Maria Luisa J. Hayag, Chito Delas Nieves Perico, Domingo Espinosa Tonada, Jr., Antoni Napili Ora, Ludivico Pasion Montero, Jr., Joelito Omila Vasquez, Alex Tabar Pairez, Junipgher Gantalao Delos Niños, Delbert Apalit Domingo, Eugene Libanta Liman-Ay, Roy Dapiasan Encluna, Ervin Malabar Noya, Ruel Lopez Buo, Jarryson Lapis Calamate, Jim Francis Dacalcap Dulay, Godofredo Matimtim Lining, Jr., Felix Acibar Regulacion, Heroine Maning Tanudtanud, Abelzon Abella Cuizon, Hilario Ganit Espiritu, Adonis Flores Correa, Dindo Amadeo Villarin, Roldan Cenas Mamolo, Jayrald Casido Romeral, Ronald Belando Sarza, Nixon Flores Basas, Jr., Randy Colanta Saligan, Alexander Marfil Golez, Joel Daquioag Taguimacon, Hermilando Tan Romines, Jr., Randy Dari Sanggayan, Robert Delima Bongcawel, Rositito Erol Quintero, Jaime Beltran Sedano, Wilmar Transmano Jebulan, Danilo Guanlao Banawa, Manuel Santillan Frondozo, Jr., Marlon Concepcion Soriano, Rolly Antopina Abdon, Angel Cahagnaan Castillo, Manuel Paralejas Labao, Christopher Teves Salang, Eric Agapito Rebosura, Kim Romo Delantar, Jeno Chua Mejillano, Raul Sumalpong Ocharon, Adan Lamata Clamor, Jimmy Olmogues Empasis, Jeffrey De Vera Gale, Christopher Mendoza Gaumeda, Dory Usop Talib, Mario Vic Espinosa Del Rosario, Ronald Capunong Medenilla, Welbor Mayao Rotor, Gary Mateo Ermeje, Rowan Manere Torres, Sr., Arjun Vallez Amet, Rodolfo Belas Dela Cruz, Jr., Raffy Jatap Berdida, Junnel Alico Aring, Ricardo Lopez Valderrama, Vinci Dotillios Consigna, Alfredo Roxas Flores, Ronald Ordanza Lizardo, Ben Jamili Clemente, Junvie Panares Jakosalem, Charmel Tusoy Catandejan, Isagani Ibalo Reyes, Brian Villa Indangan, Joseph Adrian Frijoles Gavarra, Ronald Malana Redito, Allan Manlapas Pelicano, Mark Valenzuela Gutierrez, Gilbert Ombrog Silva, Numeriano Eduarte Bongat, Lorenzo Dongsal Dagala, Rollito Bantillo Deondo, Sr., Tirso Redellas Rapsing, Jumark Kimenez Pedroso, Genil Luna Llapitan, Jomar Cantos Docabo, Archie Bustamante Catalan, Jeanmar Velarde Pedrosa, Lydor Torcino Tubal, Bernard De Guzman Cruz, Dominador Canuel Cas, Jr., Jesus Ayencia Empleo, Jr., Juliebert Angas Ramana, Marcelino Corpoz Tagud, Roel Garciano Huerta, Rosalie Gultian Mendoza, Renato Muyano Cerdan, Gerardo Dolfo Contado, Janrey Labuan Aljas, Roger Viduya Ferrando, Cirilo Generalao Sinoy, Gerardo Diamante Sususco, Renato Delima Bongcawel, Angelo Briones Gumahin, Efrin Conde Maglasang, Janito Sibonga Generalao, Ian Necosia Abande, Gilbert Semeniano Balidoy, Jiman Constanilla Lallego, Mark Peter Torreliza Cajelo, Rolando Baltazar Sartaguda, Jr., Nemesio Bongyan Samson, Jr., Napoleon P. Sususco, Lito Vallejos, Celso Chinedo Baldedomar, Jr., Elson Robledo Alforte, Crispin Ranes Ningwa and Richard Lacno Molejon v. Makati Development Corporation, Ferdie M. Mangali, and Richard Q. Jumawan) — Petitioner is REQUIRED to submit a verified declaration pursuant to A.M. Nos. 10-3-7-SC and 11-9-4-SC.

The Petition for Review on Certiorari1 under Rule 45 of the Rules of Court must be DENIED. It must be noted that not all petitioners signed the verification and certification against forum shopping nor was there proof that those who signed were authorized by their co-petitioners to sign for them. In Athena Computers, Inc., et al. v. Reyes, 2 the Court explained that:

The verification of the petition and certification on non-forum shopping before the Court of Appeals were signed only by Jimenez. There is no showing that he was authorized to sign the same by Athena, his co-petitioner.

Section 4, Rule 7 of the Rules states that a pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief. Consequently, the verification should have been signed not only by Jimenez but also by Athena's duly authorized representative.

In Docena v. Lapesura, we ruled that the certificate of non-forum shopping should be signed by all the petitioners or plaintiffs in a case, and that the signing by only one of them is insufficient. The attestation on non-forum shopping requires personal knowledge by the party executing the same, and the lone signing petitioner cannot be presumed to have personal knowledge of the filing or non-filing by his co-petitioners of any action or claim the same as similar to the current petition.

The certification against forum shopping in CA-G.R. SP No. 72284 is fatally defective, not having been duly signed by both petitioners and thus warrants the dismissal of the petition for certiorari. We have consistently held that the certification against forum shopping must be signed by the principal parties. With respect to a corporation, the certification against forum shopping may be signed for and on its behalf, by a specifically authorized lawyer who has personal knowledge of the facts required to be disclosed in such document.

While the Rules of Court may be relaxed for persuasive and weighty reasons to relieve a litigant from an injustice commensurate with his failure to comply with the prescribed procedures, nevertheless they must be faithfully followed. In the instant case, petitioners have not shown any reason which justifies relaxation of the Rules. We have held that procedural rules are not to be belittled or dismissed simply because their non-observance may have prejudiced a party's substantive rights. Like all rules, they are required to be followed except for the most persuasive of reasons when they may be relaxed. Not one of these persuasive reasons is present here.

In fine, we hold that the Court of Appeals did not err in dismissing the petition for certiorari in view of the procedural lapses committed by petitioners. 3 (Emphases supplied; citations omitted)

Even brushing aside technicalities, the petition still substantially fails.

At the outset, petitioners mainly assail the constitutionality of Department Order No. 19, Series of 1993 4(DO 19-93) issued by the Department of Labor and Employment (DOLE). This argument was never raised by petitioners in the labor tribunals or in the Court of Appeals (CA) and, thus, cannot be considered on appeal. We have previously ruled that matters that were neither alleged in the pleadings nor raised during the proceedings below cannot be ventilated for the first time on appeal and are barred by estoppel. 5 Points of law, theories, issues, and argument not brought to the attention of the trial court ought not to be considered by a reviewing court, as these cannot be raised for the first time on appeal. To consider the alleged fact and argument belatedly raised would amount to trampling on the basic principles of fair play, justice, and due process. 6

In addition, DO 19-93 was issued in the exercise of the DOLE's quasi-legislative powers. Rules issued in the exercise of an administrative agency's quasi-legislative power may be taken cognizance of by courts on the first instance as part of their judicial power, thus:

[W]here what is assailed is the validity or constitutionality of a rule or regulation issued by the administrative agency in the performance of its quasi-legislative function, the regular courts have jurisdiction to pass upon the same. The determination of whether a specific rule or set of rules issued by an administrative agency contravenes the law or the constitution is within the jurisdiction of the regular courts. Indeed, the Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts, including the regional trial courts. This is within the scope of judicial power, which includes the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. 7 (Citations omitted)

While resort to courts may directly be availed of in questioning the constitutionality of an administrative rule, parties may not proceed directly before this Court, regardless of its original jurisdiction over certain matters because of the doctrine of hierarchy of courts. 8

The remaining issues raised by petitioners are the alleged errors committed by the CA when it affirmed the National Labor Relations Commission (NLRC) and the Labor Arbiter (LA) in the interpretation and application of DO 19-93 and Article 294 of the Labor Code, and the dismissal of all the award of damages.

After a judicious review of the arguments presented, the Court finds that the petition failed to sufficiently show that the CA committed any reversible error in the challenged Decision 9 and Resolution 10 that would warrant the exercise of this Court's discretionary appellate jurisdiction.

Petitioners assail the statement that respondents' submission of the Establishment Employment Reports to the DOLE Field Office, regarding the "permanent termination" of complainants from the projects for which they were engaged, is an indication of a project employment, 11 as against the claim of petitioners that respondents failed to comply with DO 19-93 on the submission of termination report of employees upon every completion of a construction project. Let it be emphasized, however, that the submission of the termination report is just one of the indicators of project employees under the assailed administrative issuance. Thus, its non-compliance does not automatically render herein petitioners regular employees.

There is sufficient factual and legal basis that petitioners are project employees. As consistently found by the CA, the NLRC, and the LA, petitioners were project employees and they were not illegally dismissed as their "employment contracts attest to the fact that at the inception of their employment, they were already notified of the specific projects for which they were hired, the specific duration thereof and their duties and responsibilities. The said contracts expressly provide that petitioners' tenure of employment would depend on the duration of any phase of the project or the completion of the construction project." 12 The mere rehiring of petitioners did not confer upon them the regular employment status.

The Court had previously ruled in Dacles v. Millennium Erectors Corporation, et al.: 13

At any rate, the repeated and successive rehiring of project employees does not, by and of itself, qualify them as regular employees. Case law states that length of service (through rehiring) is not the controlling determinant of the employment tenure, but whether the employment has been fixed for a specific project or undertaking, with its completion having been determined at the time of the engagement of the employee. While generally, length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one, entitled to the security and benefits of regularization, this standard will not be fair, if applied to the construction industry because construction firms cannot guarantee work and funding for its payrolls beyond the life of each project as they have no control over the decisions and resources of project proponents or owners. Thus, once the project is completed it would be unjust to require the employer to maintain these employees in their payroll since this would be tantamount to making the employee a privileged retainer who collects payment from his employer for work not done, and amounts to labor coddling at the expense of management. 14 (Citations omitted)

WHEREFORE, in view thereof, the petition is DENIED.

SO ORDERED."

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 11-73.

2. 559 Phil. 123 (2007).

3.Id. at 130-131.

4. Guidelines Governing the Employment of Workers in the Construction Industry.

5.Commissioner of Internal Revenue v. Puregold Duty Free, Inc., 761 Phil. 419, 434-435 (2015).

6.Guerrero v. Philippine Transmarine Carriers, Inc., G.R. No. 222523, October 3, 2018.

7.Provincial Bus Operators Association of the Philippines, et al. v. Department of Labor and Employment, et al., G.R. No. 202275, July 17, 2018, citing Smart Communications, Inc. v. National Telecommunications Commission, 456 Phil. 145, 158-159 (2003).

8.Id.

9. CA Decision dated May 18, 2018 in CA-G.R. SP No. 153325, rollo, pp. 135-154; penned by Associate Justice Ramon R. Garcia, and concurred in by Associate Justices Myra V. Garcia-Fernandez and Germano Francisco D. Legaspi.

10. CA Resolution dated August 24, 2018; id. at 82-86.

11. Id. at 328-329 and 456.

12. Id. at 151.

13. 763 Phil. 550 (2015).

14. Id. at 560-561.