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[ G.R. No. 135665. February 3, 1999]

PILIPINO TEL. CORP. vs. HON GODOFREDO LEGASPI, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 3, 1999.

G.R, No.135665 (Pilipino Telephone Corporation vs. Hon. Godoredo Legaspi as Judge,Regional Trial Court of Quezon City, Branch 79 and Stephen L. Monsanto.)

Before us is a petition for review on certiorari which seeks to reverse and set aside the decision rendered by the Court of Appeals dated July 13, 1998 and its denial resolution dated September 23, 1998.

The present petition originated from a series of cases filed against petitioner Philippine Telephone Corporation (PILTEL) by private respondent Stephen Monsanto who was a subscriber of PILTEL. Consequently, PILTEL initiated a compromise agreement between the parties so as to avoid the inconvenience of litigation. In the said compromise agreement, PILTEL undertook to pay Atty. Monsanto Ten Thousand Pesos (P10,000.00) representing the cash surrender value of his two (2) units of beeper, to give him one (1) cellphone unit with all initial registration, membership, and installation fees and charges waived, and enrolled him under Plan 390, on the understanding that respondent shall be billed only at the normal rate in excess of 60 minutes per month. Subsequently, private respondent received his first statement of account demanding payment of an amount which falls not under Plan 390 but under Plan 1200. Under this plan, subscribers shall pay the monthly sum of P1,200.00 with 200 minutes free airtime per month. Such matter was brought to the attention of PILTEL which promised to thresh out the problem with the audit and collection department. The same errors, however, recurred in respondent's billings, coupled with a Notice of Disconnection in the last billing statement sent to him.

Thereafter, private respondent filed a complaint for specific Performance with Preliminary Injunction and TRO against PILTEL.

In response, PILTEL filed a Motion to Dismiss alleging that then plaintiff Monsanto, had no cause of action against it since he never made any payments not was his phone ever disconnected, and that, therefore, no injury or damage was suffered by him.

The lower court denied the motion, stating that the allegations of the complaint had already set forth a valid cause of action for specific performance and damages.

The Court of Appeals sustained upon the matter being elevated, emphasizing that since denial of a motion to dismiss is an interlocutory order, such may not be subject of a petition for certiorari but may be reviewed in the ordinary course of law by appeal from the judgment after trial.

Hence, the instant petition.

The Court of Appeals committed no reversible error. Even if the trial court's denial of petitioner's motion proper therein, is to go to trial, thence appeal - via the extraordinary remedy of a petition for certiorari.

WHEREFORE, petition is hereby denied."

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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