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[ G.R. No. 137496. June 9, 1999]

PNOC-PETROCHEMICAL DEV'T CORP. vs. CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 9, 1999.

G.R. No. 137496 (PNOC-Petrochemical Development Corp. vs. CA, et al.)

Petitioner filed this present petition for review on certiorari assailing the Decision of the Court of Appeals in CA-G.R. SP No. 48012 dated December 03, 1998, and the corresponding Resolution dated February 05, 1999.

As antecedent, herein petitioner PNOC-Petrochemical Development Corporation filed a complaint for removal of Cloud and Annulment of Title with Damages against private respondent Harnamel Rolgins before the Regional Trial Court of Balanga, Bataan. After filing an answer with counter claim, private respondent moved for a hearing of its affirmative defenses. After hearing, the trial court dismissed the petitioner's complaint in a decision dated 4 November 1997, on the following grounds: (1) res judicata, (2) incontrovertibility of torrens title, (3) non-payment of proper docket fees, (4) principle of concurrent jurisdiction, and (5) lis pendens. The dispositive portion of said decision reads:

WHEREFORE, premises considered, the plaintiffs complaint is hereby dismissed and the defendant may now prove or establish its counterclaim against the plaintiff.1 [Rollo, p. 21.]

Petitioner then filed a motion for reconsideration, which was denied in an Order received by petitioner on 2 June 1998. Said Order likewise set for hearing defendant's counterclaim.

On 9 June 1998, petitioner filed a notice of appeal and on 16 June 1998, petitioner filed with the Court of Appeals a Motion for Extension of time to File Petition for Review under Rule 45, praying for 30 days extension, or until 16 July 1998, within which to file its petition.

On 31 July 1998, the Court of Appeals issued a resolution dismissing the case for failure of the petitioner to file the intended petition for review. On same date, petitioner filed a "Manifestation" praying that the intended petition to be filed under Rule 45 be withdrawn and a petition under Rule 65, included thereto was said petition.

On 21 August 1998, the Court of Appeals set aside its resolution dated 31 July 1998, and required the private respondent to "Comment" on the petition.

The appellate court dismissed the petition on the ground that petitioner had taken the wrong mode of appeal. It ruled that:

Unfortunately, however, in this case, the period within which the petitioner was allowed to interpose an appeal had already lapsed. It bears stressing that the petitioner received the copy of the order dismissing its complaint on November 10, 1997. On November 24, 1997, one day before the lapse of the period of appeal, the petitioner filed a motion for reconsideration which was denied by the Regional Trial Court of Balanga, Batan on may 22, 1998. The order denying the motion for reconsideration was received by the petitioner on June 1, 1998. But it was only on June 9, 1998 that petitioner filed a notice of appeal or seven (7) days after the last day of the period to appeal considering that the petitioner has only the remaining period from the receipt of the order denying the motion for reconsideration within which to appeal.2 [CA Decision, p. 3.]

Hence, this petition, with the following assignment of errors:

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION BY WRONGLY APPLYING RULE 42 INSTEAD OF RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION BY TECHNICALITY, WHEN BY REQUIRING THE PARTIES TO FILE THIE RESPECTIVE PLEADINGS, IT HAS ACQUIRED JURISDICTION OVER THE SUBJECT MATTER, AND, THEREFORE, JUSTICE DEMANDS THAT THE COURT HAVING ACQUIRED PROPER JURISDICTION SHOULD HAVE RULED ON THE MERITS OF THE CASE.3 [Rollo, p. 20.]

We deny the petition as we find no reversible error in the decision sought for review.

As correctly pointed out by the Court of Appeals, the correct remedy of the petitioner was to appeal the decision to the Court of Appeals by way of Rule 41 and not Rule 65 as the petitioner insists. The dismissal of the complaint of the petitioner in the lower court was clearly a final order, regardless of the fact that there was a compulsory counterclaim which was still to be heard by the trial court.

IN VIEW OF THE FOREGOING, the Court RESOLVED to DENY the present petition.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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