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[ G.R. No. 139149. August 16, 1999]

VICENTE L. PIGUERRA, et al. vs. HON CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 16, 1999.

G.R. No. 139149 (Vicente L. Piguerra, et al. vs. Honorable Court of Appeals, et al.)

Petitioners filed the present petition for certiorari under Rule 65 of the Rules of Court alleging that the Court of Appeals gravely abused its discretion when it dismissed their petition for certiorari and subsequently denied their motion for reconsideration.

The petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure is the wrong mode to question the decision of the Court of Appeals, a petition for review under Rule 45 being more appropriate �1, Rule 65 of the 1997 Rules of Civil Procedure provides:

SECTION 1. Petition for certiorari. - When any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

x x x

In this case, appeal by certiorari under Rule 45 is available to petitioner. Thus, resort to petition for certiorari under Rule 65 is unwarranted. Certiorari will lie only if there is no appeal or any other plain speedy and adequate remedy in the ordinary course of law.1 [Building Care Corporation vs. National Labor Relations Commission, 268 SCRA 666 (1997).]

We cannot treat the present petition as a petition for review under Rule 45 since the same was filed two days late. Petitioners allege that they received the resolution of the Court of Appeals denying their motion for reconsideration on July 2, 1999. The petition, however, was delivered by private carrier and the same was received by this Court on July 19, 1999, two days after the expiration of the reglementary period. The date of delivery to the private carrier cannot be considered the date of filing of the petition. � 3, Rule 13 of the 1997 Rules of Civil Procedure states:

SEC. 3. Manner of filing.- The filing of pleadings, appearances, motions, notices, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour, of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment or deposit in court. The envelope shall be attached to the record of the case.

In Benguet Electric Cooperative Ins. vs. NLRC, 209 SCRA 55 (1992),2 [Cited in Industrial Timber Corp. vs. NLRC, 233 SCRA 597 (1994).] we held that:

x x x transmission through a private carrier or letter-forwarder - instead of the Philippine Post Office - is not a recognized mode of filing pleadings. The established rule is a recognized mode of pleadings to a private letter-forwarding agency is not to be considered as the date of filing thereof in court, and that in such cases, the date of actual receipt by the court, and not the date of delivery to the private carrier, is deemed the date of filing that pleading. 3 [Benguet Electric Corporation, Inc. vs. NLRC, supra, pp. 60-61.]

ACCORDINGLY, the petition is hereby DISMISSED."

Very truly yours,

(Sgd.) VIRGINIA-ANCHETA-SORIANO
Clerk of Court

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