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

WITH ALL DUE RESPECT UNTO THIS HONORABLE COURT OF

APPEALS, Respondent JEM HOSPITAL EQUIPMENT AND MEDICAL

SUPPLY through its owner Respondent MARIE JOYCE DUNTUGAN

MORA by counsel humbly submits this

ENTRY OF APPEARANCE AND COMMENT TO

THE PETITIONERS’ PETITION FOR
CERTIORARI

The services of the Law Office was just engaged by respondent Marie

Joyce Duntugan Mora as owner of Respondent Jem Hospital Equipment

and Medical Supply thus it is moved that the subsequent processes

emanating from this Honorable Court be furnished through counsel at its

office address as appearing in the dorsal portion of this pleading.

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 In faithful compliance of the directive in the Resolution of this

Honorable Court of Appeals requiring respondents to file their comment on

the Petition for Certiorari, may it be mentioned here that the said Petition

for Certiorari deserves no attention. The grounds are as follows:

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

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

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 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.

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

legal interpretation. In explaining why Edwin Mora and Marie Joyce

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

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 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

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 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.

Reinforcing 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

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 preliminary matters. –xxxx- (underscoring supplied
by the NLRC)

Thus, the NLRC concluded that since Edwin Mora, 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.

To back it up, 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.”

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 As they are strangers to the case, execution could never be enforced

against them otherwise there would be a clear violation of their right to

due process that is zealously protected by no less than the Constitution of

the Philippines when it provides in Article III thereof, that:

“Sec. 1. No person shall be deprived of

life, liberty, or property without due process
of law, nor shall any person be denied the
equal protection of the laws.”

Procedurally, the Petition for

Certiorari likewise should not
be entertained.

Apparent in the instant petition is the non-discussion and non-

inclusion of any proof as to the payment of the required docket and/or

appeal fees required for petitions submitted to the Court of Appeals.

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:

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 “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

Petitioners Rosenda E. Misola

and Reynulfo V. Levasty
should be excluded from any
proceedings relative to this
petition.

As can be gleaned from the records of this case, petitioner Reynulfo

V. Levasty did not sign the verification and certificate of non-forum

shopping appended to the petition for certiorari.

Albeit having signed the verification and certificate of non-forum

shopping of the instant petition, petitioner Rosenda E. Misola did not sign

the verification and certificate of non-forum shopping of their August 24,

2009 appeal which they filed at the NLRC Quezon City. A photocopy of the

verification and certificate of non-forum shopping in petitioner’s August 24,

2009 appeal is hereto attached as Annex “1”.

PRAYER

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.

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 WHEREFORE, it is most respectfully prayed unto this Honorable

Court of Appeals that the petition be dismissed for utter lack of merit.

Other relief just and equitable under the premises are also most

respectfully prayed.

Respectfully submitted in Baguio City for Manila, Philippines, this 12 th

day of August 2010.

BASA BALAGTEY LAW OFFICES

Benetiz Court Compound
Magsaysay Ave., Baguio City

by:

MILTON L. BALAGTEY
IBP NO. 806002/01-08-10/Baguio City
PTR NO. 2657119/01-08-10/Baguio City
ROLL NO. 45247/05-08-00
MCLE Compliance No. III-0000794

Copy furnished:

Atty. FEDERICO B. BUNAO

Counsel for the Petitioners Reg. Receipt No. ________
No. 55 Ferguson Road, Guisad, August 12, 2010
2600 Baguio City Baguio City Post Office

THE SOLICITOR GENERAL Reg. Receipt No. ________

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134 Amorsolo St. Legaspi Village August 12, 2010
1229 Makati City, Metro Manila Baguio City Post Office

NATIONAL LABOR RELATIONS

COMMISSION
2nd Division Reg. Receipt No. ________
PPSTA Bldg. Banawe St., August 12, 2010
Quezon City Baguio City Post Office

EXPLANATION

Due to impracticability of personal service and filing, brought about

by distance, lack of office personnel, and time constraint, copies of the
foregoing are being served to the above-named addressees and filed to
this Honorable Court by means of registered mail with return card.

MILTON L. BALAGTEY

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