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[G.R. No. 142818. June 28, 2000]

SPS. JULIANA J. BALDOZ vs. PS BANK

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 28 2000.

G.R. No. 142818 (Sps. Vigeldio R. Baldoz and Juliana J. Baldoz v. Philippine Savings Bank.)

This is a petition for review of the decision, dated December 27, 1999, of the Court of Appeals setting aside an order issued by the Regional Trial Court, Branch 21, Malolos, Bulacan in Civil Case No. 196-M-97. The facts are as follows:

On March 20, 1997, petitioners Vigeldio Baldoz and Juliana Baldoz filed a complaint against respondent Philippine Savings Bank for specific performance and damages. After trial, the RTC rendered judgment in their favor. Copy of the decision was served on respondent on July 20, 1998. On August 3, 1998, respondent filed a motion for reconsideration but its motion was denied by the court on January 8, 1999. A copy of the order was served on respondent and received by it on March 15, 1999. On March 17, 1999, respondent filed a notice of appeal, which petitioners opposed on the ground that the notice had been filed out of time while no appeal fee had been paid. On April 7, 1999, respondent filed a Reply to Comment/Opposition to Notice of Appeal with Motion to Accept Appeal Fee, at the same time paying the appeal fee.

On June 9, 1999, the trial court dismissed the appeal and, on June 14, 1999, issued a writ of execution. Thereafter, the sheriff issued a notice to comply with the writ to respondent.

Respondent then filed a petition for certiorari in the Court of Appeals, and secured, on July 2, 1999, a temporary restraining order. However, upon the expiration of the temporary restraining order on September 3, 1999,, the sheriff levied on four vehicles of respondent and scheduled the auction sale on September 13, 1999. Respondent filed an urgent motion for the issuance of a writ of preliminary injunction, which the Court of Appeals granted on September 10, 1999, but, despite the injunction, the sheriff proceeded with the auction sale on September 13, 1999. On December 27, 1999, the Court of Appeals rendered a decision the dispositive portion of which reads:

WHEREFORE, the petition is hereby granted. The Order dated June 9, 1999 is ANNULLED and SET ASIDE. The writ of execution dated June 14, 1999, the notice of demand to comply dated June 17, 1999, the levy made on September 3, 1999 and the auction sale allegedly conducted on September 13, 1999, are all declared null and void. The writ of injunction is hereby made permanent.

Hence, this petition raising the following issues: (1) whether respondent's notice of appeal; was filed on time; and (2) whether the CA erred in setting aside the trial court's order denying respondent's appeal on the ground that the appeal fee was filed late.

The petition has no merit.

First. In the computation of the reglementary period, especially if it is interrupted by the filing of a pleading, the rule is that the date when the pleading is filed and the date of receipt of the judgment or order thereon are to be excluded. (Lloren v. De Veyra, 114 Phil 566 (1962)). Respondent received its copy of the decision of the trial court on July 20, 1998 and filed its motion for reconsideration fourteen (14) days thereafter, on August 3, 1998. Following this rule, the date of receipt of the decision (July 20, 1998) as well as the date of filing of the motion for reconsideration (August 3, 1998) should be excluded; consequently, respondent had two (2) days left to file its notice of appeal when it received the denial of its motion for reconsideration on March 15, 1999. Hence, its notice of appeal filed on March 17, 1999 was filed in due time.

Second. Petitioner contend the trial court was correct in denying the appeal on the ground that respondent paid the docket and other fees twenty-one (21) days after the last day for filing an appeal. They argue tha that the payment of such fees is a condition sine qua non to the perfection of an appeal. Hence, the Court of Appeals erred in setting aside the trial court's order.

This contention has no merit. Rule 41, �9 of the 1997 Rules of Civil Procedure provides in part:

Perfection of appeal; effect thereof. A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time . . . .

"Due time" here refers to the fifteen (15) day period to file the notice of appeal and nothing else. We agree with the Court of Appeals in applying the rule of expressio unius est exclusio alterius and holding that the only requisite for the perfection of an appeal is the filing of a notice of appeal within the 15-day reglementary period. In fact, under Rule 41, �13, the only time the RTC can dismiss an appeal is when such appeal is taken out of time.

In addition, Rule 50, �1(c) states:

SEC. 1. Grounds for dismissal of appeal. - An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:

. . . .

(c) Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41 and sec 5 of Rule 40.

(Italics supplied)

Two things are evident from this rule, to wit: (1) the use of the word "may" indicates that the failure of an appellant to pay the docket and other lawful fees on time is a matter addressed to the sound discretion of the court; and (2) the discretion to dismiss an appeal on this ground is vested in the Court of Appeals.

WHEREFORE, the petition is DENIED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS

Clerk of Court�

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