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[A.M. OCA IPI No. 03-1607-P. July 14, 2004]

CERVANTES vs. PEREYRA

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 14 2004 .

A.M. OCA IPI No. 03-1607-P (Perla P. Cervantes vs. Bonifacio P. Pereyra, Clerk of Court II, Municipal Circuit Trial Court, Baras-Gigmoto, Catanduanes.)

R E S O L U T I O N

Considering the Report dated April 29, 2004 of the Office of the Court Administrator, to wit:

. . . The following were filed with this Office:

1.������ COMPLAINT dated 7 March 2003 of Perla Cervantes charging Bonifacio P. Pereyra with grave abuse of discretion, imprudence, conduct unbecoming of a clerk of court and violation of the Code of Ethical Standards for Government Employees in relation to Civil Case No. 2597 entitled "Perla Cervantes vs. Shelee ^[1] cralaw Pereyra Tariman" for Damages. Said case was filed at Municipal Trial Court, Bacoor, Cavite on 24 June 2002. On the same day, herein complainant who was the plaintiff in said case, was required to pay the following legal fees and was issued the following official receipts: P118.00 - filing fee (JDF), OR No. 14743248 ...; P32.00 - filing fee (General Fund), OR No. 16238787 ...; P10.00, OR No. 16238810 ..., and P5.00 - Victims Compensation Fund, OR No. 7565929....
Clerk of Court Magdalena Salvacion of MTC, Bacoor, Cavite endorsed the said complaint and summons to respondent Clerk of Court Bonifacio Pereyra of MCTC, Baras-Gigmoto, Baras, Catanduanes for service to the defendant. However, on March 5, 2003 (or more than eight months from June 24, 2002), complainant received a letter dated 24 February 2003 from Clerk of Court Salvacion informing her that respondent Pereyra returned to MTC, Bacoor, Cavite the subject complaint, its attachments and the summons unserved. Attached to said correspondence is a copy of the letter dated 12 February 2003 of respondent Pereyra addressed to Clerk of Court Salvacion which is quoted hereunder:

"Madam:

Per instruction of the Honorable Judge, it is respectfully return (sic) to the Court of Origin with the suggestion to please require the plaintiff to money order the Sheriffs/Process Server's Fee. MCTC, Baras, Catanduanes and attached (sic) the Summons, copy of Complaint and other attachment thereof, as requisites (sic) legal fees under Section 9 of Rule 141 of the Rules of Court, as amended under Administrative Circular No. 3-2000 dated June 15, 2000.

Thank you."

According to complainant, it is clear that respondent refused to cause the service of summons and complaint to defendant Shelle Pereyra Tariman who happens to be his daughter. Complainant surmises that respondent was only delaying the service of the summons and complaint to buy time for her daughter. Complainant argues that if there was really a need for her to send money order as Sheriffs/Process Server's fee to MCTC, Baras, Catanduanes, the staff of MTC, Bacoor, Cavite should have advised her to do so and she would have complied. Assuming arguendo that it was a requirement, respondent should have nonetheless already caused the service of summons and complaint to his daughter who is staying with him in the same house considering that the summons and complaint were already endorsed to him. His action had only delayed the service of summons to the defendant for eight months (as of March 7, 2003) from the time the complaint was filed.

Complainant adds that it is worth mentioning that on 17 May 2003, she filed before 2nd MCTC, Baras-Gigmoto, Catanduanes three criminal cases for unjust vexation (docketed as Criminal Case Nos. 1474 and 1476) and one for intriguing against honor (docketed as Criminal Case No. 1477) against respondent Pereyra. She also requested the Honorable Court in A.M. No. 02-11-303-MCTC to temporarily transfer Branch Clerk of Court Bonifacio Pereyra from 2nd MCTC, Baras-Gigmoto, Catanduanes to another court during the pendency of said cases. Acting on her request, the First Division of the Court resolved inter alia on December 4, 2002 to instead transfer the venue of Criminal Cases Nos. 1474-1477 to 3rd MCTC, Panganiban - Bagamanoc, Catanduanes. Aside from these cases, she also filed on June 10, 2002 an administrative complaint (now docketed as OCA IPI No. 02-1431-P) for abusive conduct, conduct unbecoming of a Clerk of Court and imprudence before the Office of the Court Administartor against the same respondent Pereyra.

2.������ LETTER dated 10 March 2003 of complainant requesting anew the transfer of respondent Pereyra from 2nd MCTC, Baras-Gigmoto to another court in Catanduanes, alleging that she had recently filed new criminal cases for perjury against respondent, his wife and daughter Shelle Pereyra Tariman before respondent's court station. Complainant avers that in order to ensure due process and fair proceeding in the perjury cases, respondent should be transferred. Should the cases be heard in said court, complainant would have to deal with respondent in securing court clearances and the transcript of stenographic notes since he has control over the records of cases, and, such situation may create conflict.

Complainant avers that respondent's presence at the MCTC, Baras, Catanduanes produces tension between her family and that of the respondent's because respondent filed baseless and fabricated criminal cases against the members of her family which were dismissed by the Provincial Prosecutor of Catanduanes. She adds that respondent has the reputation of threatening people that he would file cases against them in court and send them into prison.

3.������ MANIFESTATION dated March 24, 2003 of the complainant stating that to date, the summons and copy of the complaint in Civil Case No. 2597 has (sic) still not been served upon the defendant.

4.������ COMMENT dated May 20, 2003 of respondent Bonifacio Pereyra DENYING the allegations in the complaint. He avers that the summons in Civil Case No. 2597 was not served to defendant Shelle Pereyra Tariman because complainant did not pay the process server's fee, summons fee and subpoena fee as required in Administrative Circular No. 3-2000 (June 15, 2002). What she paid were the fees for the Judicial Development Fund, General Fund, Victim's Compensation Fund and the UP Legal Research Fund.

Respondent claims that defendant Shelle Pereyra Tariman resides on Rea St. (sic), Calatagan, Virac, Catanduanes which is thirty-one kilometers from Baras, Catanduances where he lives.

Respondent adds that OCA IPI No. 02-1431-P filed against him by the complainant on June 10, 2002 was already dismissed for lack of merit by the Third Division of the Supreme Court per Resolution dated February 12, 2003.

5.������ LETTER dated June 10, 2003 of complainant informing the court anew that the summons in Civil Case No. 2597 remains unserved.

EVALUATION:�������� Under the law, the service of summons and a copy of the complaint to the defendant is the duty of the sheriff or his deputy. For executing such process, the officer tasked to serve the same shall receive fees depending upon the distance from the place of service to the place where the process is to be executed. The cost of expenses in serving the process and the per diem of the sheriff or his deputy shall be at the expense of the party requiring it. The payment shall be deposited with the court from which the process is requested which shall not be less than P200.00, subject to refund of the cash or payment of deposit.

In this instant case, respondent was charged for non-service of summons. Complainant claimed that she paid the required legal fees as shown in the Official Receipts .... Complainant, however, failed to pay the cost of expenses and the per diems to be incurred by the Sheriff or his deputy in servicing (sic) the summons with a copy of the complaint to the defendant.

The allegation of the complainant that respondent returned the summons and the complaint to Magdalena Salvacion, Clerk of Court of MTC, Bacoor, Cavite is not supported by evidence. It may be true that she filed her complaint in the MTC of Bacoor, Cavite on June 24, 2002, but there is no proof that the summons with the complaint was immediately indorsed to the Clerk of Court of Municipal Circuit Trial Court of Baras-Gigmoto, Catanduanes. What is on record is that complainant received a letter from Magdalena Salvacion, Clerk of Court of MTC Bacoor, Cavite dated February 24, 2003 informing her that the summons and the complaint for service upon defendant Shelle Pereyra Tariman had already been indorsed. The date it was indorsed was not mentioned.

The non-service of summons and the complaint to the defendant was not the fault of the respondent. If at all, the Clerk of Court of MTC, Bacoor, Cavite, should be blamed for not asking the plaintiff-complainant to deposit with the court the estimated cost of expenses that may be .incurred in serving the process. Moreover, respondent returned the summons and the complaint to the court of origin as per instruction of the judge of MCTC, Baras-Gigmoto, Catanduanes.

RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court with the recommendation that the instant complaint be DISMISSED for insufficiency of evidence.

and finding the evaluation and recommendation thereon to be in accord with the law and the facts of the case, the Court hereby approves and adopts the same.

ACCORDINGLY, the administrative complaint against Bonifacio P. Pereyra is DISMISSED for insufficiency of evidence.

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

Endnotes:

^[1] cralaw Also spelled as "Shelle" in the Report.

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