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[ G.R. No. 142291. April 5, 2000]

P.A. AVILES PLACEMENT SERVICES, INC., vs. CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated APR 5 2000.

G.R. No. 142291. (P.A. Aviles Placement Services, Inc., vs. Court of Appeals, et al.)

This is a special civil action for certiorari with prayer for temporary restraining order and/or preliminary injunction seeking the nullification of the resolution of the Court of Appeals, dated 2 February 2000, which denied petitioner's motion for reconsideration of the decision of the appellate court promulgated on 7 July 1999, which affirmed with modification the adverse decision of the National Labor relations Commission.

At the outset, it must be noted that P.A. Aviles Placement Services, Inc., (the "Petitioner") chose the wrong mode of appeal. Under the 1997 Rules of Civil Procedure, decisions and resolutions of the Court of Appeals are reviewable by this Court under Rule 45.1 Rule 45 - APPEAL BY CERTIORARI TO THE SUPREME COURT

Section 1. Filing of petition with Supreme Court.- A party desiring to appeal by certiorari from a judgment, or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other course whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise questions of law which must be distinctly set forth. Petitioner is no doubt assailing the judgment and resolution of the appellate court. Hence, it should have filed an appeal by certiorari under Rule 45 and not under Rule 65. Moreover, contrary to petitioner's stand the remedy of appeal is available and, as such, it cannot take relief under Rule 65.

The Court is not unaware that the present petition is being used as a substitute for the lost remedy of appeal. Petitioner received a copy of the decision of the Court of Appeals on 2 August 1999. On 17 August 1999, petitioner filed its motion for reconsideration of the aforesaid decision. This was denied by the appellate court on 2 February 2000. The denial of the motion for reconsideration was received by petitioner on 18 February 2000. Under Section 2, Rule 45 of 1997 Rules of Civil Procedure, petitioner had fifteen [15] days counted from notice of the denial of the motion for reconsideration or on 4 March 2000 to file a petition for review on certiorari. The petition was filed out of time and only on 22 March 2000. However, in order to gloss over the delay, petitioner opted to file a special civil action for certiorari instead. The Court cannot countenance such a move. At any rate, we have studied the petition and finds the same to be without merit.

ACCORDINGLY, the petition is hereby DISMISSED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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