AMERICAN HOME ASSURANCE COMPANY AND AMERICAN INTERNATIONAL UNDERWRITERS (PHIL.) INC., PETITIONERS, VS. HONORABLE COURT OF APPEALS, INSURANCE COMMISSION AND VERA I. WITTE, REPRES…

Concurring Opinion

DE CASTRO, J.:

I am of the opinion that this petition does not present only a
question of fact – whether the copy of the decision was deemed received by
counsel for petitioner on June 15, 1976 when he actually received it from a certain
Agnes Avaricio, or on June 14, 1976, when Agnes Avaricio received it from the
mail carrier Luis Encarnacion but also whether, even assuming that the petition
was filed one (1) day late, the Court of Appeals gravely abused its discretion
in not accept­ing the appeal in the light of jurisprudential rulings, pre­sently
to be cited, which is a question of law.

Petitioners contend that “while the question of whether
petitioners’ appeal to respondent Court was perfected on time is one of fact and factual findings
of the said Court are generally not reviewable by certiorari, however,
expec­ted from this rule are the instances, among others, where the finding is
not supported by substantial evidence, where it is made without regard to
evidentiary and procedural rules, and where there is a grave abuse of
discretion.  This case comes within the
exceptions mentioned.”

The records show that petitioners filed a notice of appeal with
respondent Insurance Commissioner and a petition for review with respondent
Court of Appeals on July 15, 1976.  There
is no dispute that petitioners’ counsel actually re­ceived Registered Letter
No. 76204 containing copy of the decision of respondent Insurance Commissioner
only on June 15, 1976, when it was delivered to them by a certain Agnes
Avaricio, an employee of PADCOM Condominuim Corporation holding office at the
ground floor of the same Padilla Building where petitioners’ counsel hold
office at the sixth floor.  There is also
no dispute that this Agnes Avaricio is not and never was an employee of
petitioners’ counsel.  Agnes Avaricio
appeared to have received the mail matter in question since the letter carrier,
Luis Encarnacion, is pro­hibited by postal regulations to go up the floors of
any building.  So, he requested Miss
Avaricio to deliver for him the mail matter in question to petitioners’
counsel’s office.  Miss Avaricio
accommodated him.

In dismissing the
petition for review filed by peti­tioners, the Court of Appeals must have
sustained private respondent’s stand that Registered Letter containing copy of
the questioned decision was delivered to the petitioners’ counsel on June 14,
1976 as evidenced by the verified cer­tification of the Postmaster of the
Greenhills Post Office to the effect that Registered Letter No. 76204 was
delivered to the “authorized representative” of the addressee on June
14, 1976, and that the counting of the period to appeal begins from the date
the letter was actually received by Agnes Avaricio for the addressee, and not
from the time Miss Avaricio turned over
this letter to the addressee (Pelaez, Jalandoni, and Adriano Law Office).

This contention is without merit. 
In the case of Vecino vs. Court of Appeals^[1],
this Court held that service of court’s decision or order upon a person other
than counsel on record, even on the party-in-interest himself is not legally
effective and does not start running of period for appeal.  In the words of this Court:

“On this score, it is the rule that service upon any person
other than the counsel of record, even actually upon the party is interest
himself, is not legally effective and may not serve to start the corresponding
reglementary period for the subsequent procedural steps he is supposed to
take.  In the case of Chainani vs.
Tansinco, 90 Phil. 862, Chainani himself, instead of his counsel secured and
signed for the copy of the decision. 
This Court held that the period for appeal was nevertheless to be
counted from the date counsel was served.”

It cannot be otherwise in the case at bar, considering that Agnes
Avaricio is not even a party.

Even assuming, however, that there was really a one-day delay in
filing the notice of appeal and petition for review, still it is evident from
the records of the case that the delay was far from being intentional and
dilatory.  At least it could be deduced
from the conduct of petitioners’ counsel of filing their notice of appeal and
petition for review on the 30th day that is, within the reglementary period for
perfecting appeal, after their actual receipt of the registered mail in
question.  A one-day delay does not
justify the dismissal of the appeal under the circumstances obtaining in this
case.

In the case of Bagalanon vs. Court of Appeals^[2]
and reiterated in the case of Paulino vs. Court of Appeals,^[3]
We stated:

“It has been held in a number of cases that pleadings, as well
as remedial laws should be construed liberally, in order that litigants may
have ample opportunity to prove their respective claims and that a possible
denial of substantial justice, due to legal technicalities may be avoided
(Quibuyen vs. Court of Appeals, 9 SCRA 741; Luzteveco Employees Association
SCLU vs. Luzteveco, Inc., 15 SCRA 660; Archez vs. Bellosillio, 20 SCRA
31).  Certainly to dismiss the petition
for review due to its late filing for a few hours or even a day or two without
regard to the circumstances for the delay is giving too much importance to
legal technicalities which may unfortunately amount to a denial of substantial
justice to petitioners.  Normally, a
petition for review of the decision of the lower court could be thrown out for
being filed out of time except when there is a special circumstances that may
warrant a liberal attitude of the court. 
For this Court has already considered Section 1, Rule 50 of the Revised
Rules of Court as dis­cretionary and not mandatory.  Thus, in Maqui vs. Court of Appeals (G.R. No.
L­-41609, February 24, 1976) this Court had reiterated the caveat we have
enunciated in Philippine National Bank vs. Philippine Milling Co. Inc., (26
SCRA 712) to the effect that “Rule 50, Section 1 of the Revised Rules
of Court which provides specific grounds for dismissal of appeal manifestly
confers a power and does not impose a duty. 
What is more it is direc­tory, not mandatory.” (Underscoring
supplied).

There is likewise, no
showing that the intended appeal of the petitioners was frivolous and for the
purpose of delay.  In fact, the Court of
Appeals in its resolution of July 23, 1976, giving due course to the petition,
stated that the petition for review filed in the above entitled case is prima
facie meritorious and not manifestly for delay, for which it was given due course.

In the case of De Las
Alas vs. Court of Appeals,4 this Court said:

“Litigations should,
as much as possible, be decided on their merits and not on technicality,
and under the circumstances obtaining in this case We are reminded of what WE
said in the case of Gregorio vs. Court of Appeals (L-43511, July 28, 1976, 72
SCRA 120), thus.

‘Dismissal of appeals purely on technical grounds is frowned upon
where the policy of the courts is to encourage hearings of appeals on their
merits and the rules of pro­cedure ought not to be applied in a very rigid,
technical sense; rules of procedure are used only to help secure, not override,
substantial justice.  If a technical
and rigid enforcement of the rules is
made, their aim would be defeated.’ (Underscoring supplied)

The foregoing notwithstanding, considering that the case was
submitted on August 8, 1977 and therefore more than 18 months have lapsed since
then, and conformably to the provision of the Constitution[5] under
which the appealed decision should be deemed affirmed, I vote to concur in the
result.

^[1]
76 SCRA 98.

^[2]
No. L-43043, March 31, 1977, 76 SCRA 232.

^[3]
No. L-46723, October 28, 1977, 80 SCRA 257.

[5] Sec. 11 (2), Art. X, 1973
Phil. Constitution.