G.R. No.

L-22536 August 31, 1967

DOMINGO V. AUSTRIA, petitioner,

vs.

HON. ANTONIO C. MASAQUEL, in his capacity as the Presiding Judge of Branch II of the Court of First
Instance of Pangasinan, respondent.

Primicias, Del Castillo and Macaraeg for petitioner.

Antonio C. Masaquel for respondent.

ZALDIVAR, J.:

This is a petition for a writ of certiorari to annul or set aside the order of respondent Judge Antonio
Masaquel, dated February 10, 1964, in Civil Case No. 13258 of the Court of First Instance of Pangasinan,
declaring petitioner Domingo V. Austria guilty of contempt of court and imposing upon him a fine of
P50.00.

The facts that gave rise to the incident in question are not disputed. Petitioner was one of the plaintiffs
in the above-mentioned Civil Case No. 132581 against Pedro Bravo for the recovery of three parcels of
land — one parcel being located at Bayambang and two parcels in San Carlos, in the province of
Pangasinan. On April 19, 1963, after trial, respondent Judge rendered a decision declaring the plaintiffs
the owners of the three parcels of land in question and ordering the defendant to vacate the lands and
pay the plaintiffs damages only with respect to the land located at Bayambang. The plaintiffs filed a
motion for the immediate execution of the judgment — which motion was granted by respondent Judge
on May 31, 1963 — and, upon the plaintiffs' having posted a surety bond in the sum of P2,000.00, the
sheriff placed them in possession of the lands located at San Carlos.

On May 23, 1963, Atty. Mariano C. Sicat, a former assistant or associate of respondent Judge when the
latter was still in the practice of law before his appointment to the bench, entered his appearance as the
new counsel for defendant Pedro Bravo, vice Attorney Antonio Resngit. On June 14, 1963, the defendant,
through Atty. Sicat, filed a supersedeas bond to stay the execution of the judgment, and on June 20,
1963 respondent Judge granted the stay of execution, over the objection of plaintiffs, and ordered the
sheriff to restore the possession of the lands in San Carlos to the defendant. The petitioner likewise had
asked for the appointment of a receiver over the parcel of land located at Bayambang, which prayer was
granted by respondent Judge on July 8, 1963; but upon the filing of a bond by the defendant for the non-
appointment of a receiver, the order receivership was set aside. On August 24, 1963, pending the
approval of the defendant's amended record on appeal, Atty. Sicat filed a motion for new trial and to set
aside the judgment and, over the vigorous objection of plaintiffs, the respondent Judge granted the said
motion on November 7, 1963. The hearing on the retrial was finally set for February 10, 1964.
Before the opening of the court's session in the morning of February 10, 1964, Atty. Daniel Macaraeg,
counsel for petitioner and his co-plaintiffs, saw respondent Judge in his chamber and verbally
transmitted to him the request of petitioner that he (the Judge) inhibit himself from further hearing the
case upon the ground that the new counsel for the defendant, Atty. Mariano C. Sikat, was his former
associate. The respondent Judge, however, rejected the request because, according to him, the reason
for the request of his inhibition is not one of the grounds for disqualification of a judge provided for in
the Rules of Court. Thereafter, when the case was called for hearing in open court, the following
transpired, as shown by the transcript of the stenographic notes taken during said hearing:2

APPEARANCE:

ATTY. DANIEL C. MACARAEG: Yes, sir.

appeared in behalf of plaintiffs. (After the case COURT:

was called)
Atty. Macaraeg approached me in chambers
COURT: requesting me to disqualify myself in hearing
this case. Did you authorize Atty. Macaraeg to
Your client is here? approach me verbally to disqualify myself from
ATTY. MACARAEG: hearing this case because the lawyer of the
other party was my former assistant?
Yes, Your Honor.
DOMINGO AUSTRIA:
COURT:
Yes, sir.
Where is he?
COURT:
ATTY. MACARAEG:
Is that your reason why you requested Atty.
He is here, Your Honor. Macaraeg to approach me, requesting me to
disqualify myself simply because the lawyer of
COURT:
the other party was my assistant?
What is your name?
DOMINGO AUSTRIA:
PLAINTIFF:
Yes, sir.
Domingo Austria, sir.
COURT:
COURT:
All right. Do you doubt the integrity of the
You are one of the plaintiffs in this case? presiding Judge to decide this case fairly and
impartially because the lawyer of the other
DOMINGO AUSTRIA: party was my former assistant? Do you doubt?
Just answer the question?
DOMINGO AUSTRIA: COURT:

Yes, sir.
COURT:
The Court hereby finds you guilty of contempt
of Court and you are hereby ordered to pay a
fine of P50.00.
ATTY. MACARAEG:
With due indulgence of this Honorable Court —
I have learned, after I have conferred with you
in chambers, another ground of the plaintiffs for
their requesting me to ask for the
disqualification of Your Honor in this case, and
this ground consists of the rampant rumor
coming from the defendant Pedro Bravo himself
that he is boasting in San Carlos that because he
has a new lawyer, that surely he is going to win
this case.
COURT:
You mean to say because of that rumor, you are
going to doubt my integrity?
ATTY. MACARAEG:
As for me, I entertain no doubt, Your Honor.
COURT:
Your client expressed openly in Court his doubts
on the integrity of the Court simply based on
rumors and that is a ground for contempt of
court, if only to maintain the faith of the people
in the courts.
ATTY. MACARAEG:
Taking into consideration that these plaintiffs
are laymen and we cannot expect from them
the thinking of a lawyer, I am most respectfully
praying that the Order of this Court be
reconsidered.

Why did you not wait until the case is finally COURT:
decided and find out if that is true or not? Denied. Your client should pay a fine of P50.00.
ATTY. MACARAEG: We will hear this case this afternoon.

ATTY. MACARAEG:
And maybe, that is why the plaintiffs requested
me to approach Your Honor because of that Yes, Your Honor.
rampant rumor that Pedro Bravo is spreading.

The respondent Judge forthwith dictated the following order:3

Before this Court opened its sessions this morning, Atty. Daniel C. Macaraeg, counsel for the plaintiffs,
approached the presiding Judge of this Court in his chambers and manifested the desire of his clients for
the Judge to disqualify himself from trying the above-entitled case for the reason that counsel for the
defendant, Atty. Marciano C. Sicat was formerly an associate of the Judge of this Court while he was still
engaged in the practice of law. To this manifestation of Atty. Macaraeg, the Presiding Judge informed the
latter that such fact alone does not in itself constitute a legal ground to disqualify the Presiding Judge of
this Court, from trying this case.
When the above-entitled case was called for hearing, the Presiding Judge called on one of the plaintiffs
who was present, namely, Domingo Austria, and inquired from the latter if it was true that he asked his
lawyer Atty. Macaraeg to approach the Judge in chambers and to ask him to disqualify himself from
trying this case because defendant's lawyer, Atty. Sicat was formerly associated with the said Judge. To
this query Domingo Austria answered in the affirmative. When he was also asked as to whether the said
Domingo Austria has lost faith in the sense of fairness and justice of the Presiding Judge of this Court
simply because of his former association with the defendant's lawyer, said Domingo Austria likewise
answered in the affirmative.

The Court considers the actuation of the plaintiff Domingo Austria, in the premises, as offensive,
insulting and a reflection on the integrity and honesty of the Presiding Judge of this Court and shows his
lack of respect to the Court. The said Domingo Austria is not justified and has no reason to entertain
doubts in the fairness and integrity of the Presiding Judge of this Court, simply because of the latter's
former association with defendant's counsel. For this reason and in order to maintain the people's faith
and respect in their courts — the last bulwark in our democratic institutions — the Presiding Judge
declared said plaintiff Domingo Austria in direct contempt of court and he was ordered to pay a fine of
P50.00.

The Court found from the manifestation of plaintiffs' counsel Atty. Macaraeg that the basis of the
statement, of Domingo Austria that he has lost his faith in the Presiding Judge of this Court is the rumors
being circulated by the defendant Pedro Bravo that he will surely win in the present case because of his
new lawyer, Atty. Marciano C. Sicat. The Court believes that rumors of the sort do not serve as a
sufficient basis or justification for the plaintiff Domingo Austria to insinuate bias and partiality, on the
part of the Court and to express openly his loss of faith and confidence in the integrity, fairness and
capability of the Presiding Judge of this Court to perform his sworn duty of upholding and administering
justice, without fear or favor, and by reason of which this Court denied the verbal motion to reconsider
filed by counsel for the plaintiff Domingo Austria, finding him guilty of contempt of court and ordering
him to pay a fine of P50.00.

SO ORDERED.

Given in open Court this 10th day of February, 1964, at Lingayen, Pangasinan.

Petitioner Domingo Austria, accordingly, paid the fine of P50.00 under protest. Having been punished
summarily for direct contempt of court, and the remedy of appeal not being available to him, petitioner
filed the instant petition for certiorari before this Court.

It is the position of the petitioner that under the facts and circumstances attendant to the hearing of the
Civil Case No. 13250 on February 10, 1063, he had not committed an act of contempt against the court
and the respondent Judge had acted in excess of his jurisdiction with grave abuse of discretion when he
declared petitioner in direct contempt of court and imposed on him the fine of P50.00 as a penalty.

After a careful study of the record, We find merit in this petition.

The respondent Judge declared the petitioner in direct contempt of court. Our task, therefore, is to
determine whether or not the petitioner was guilty of misbehavior in the presence of or so near a court
or judge, as to obstruct or interrupt the proceedings before the same, or had committed an act of
disrespect toward the court or judge.4

The respondent Judge considered the actuation of the petitioner, in the premises, as offensive, insulting,
and a reflection on his integrity and honesty and a showing of lack of respect to the court. The
respondent Judge considered that the petitioner was not justified and had no reason to entertain doubts
in his fairness and integrity simply because the defendant's counsel was his former
associate.1äwphï1.ñët

We do not agree with the respondent Judge. It is our considered view that when the petitioner
requested respondent Judge to inhibit himself from further trying the case upon the ground that the
counsel for the opposite party was the former associate of the respondent Judge, petitioner did so
because he was impelled by a justifiable apprehension which can occur in the mind of a litigant who sees
what seems to be an advantage on the part of his adversary; and that the petitioner made his request in
a manner that was not disrespectful, much less insulting or offensive to the respondent Judge or to the
court.

We are in accord with the statement of respondent Judge in his memorandum that the circumstance
invoked by petitioner in asking him to inhibit himself from further trying the case — that Atty. Sicat was
his former associate in his practice of law — is not one of the grounds enumerated in the first paragraph
of Section 1, Rule 137 of the new Rules of Court for disqualifying a judge. While it is true that respondent
Judge may not be compelled to disqualify himself, the fact that Atty. Sicat, admittedly his former
associate, was counsel for a party in the case being tried by him, may constitute a just or valid reason for
him to voluntarily inhibit himself from hearing the case on a retrial, if he so decides, pursuant to the
provision of the second paragraph of Section 1 of the said Rule 137.5

The apprehension of petitioner regarding the probable bias of respondent Judge does not appear to be
groundless or entirely devoid of reason. The respondent Judge had decided the case in favor of
petitioner and his co-plaintiffs, and that upon plaintiffs' timely motion and filing of bond they were
already placed in possession of the lands in question pending appeal. It was when Atty. Sicat took over as
new counsel for defendant that the latter was given back the properties, upon a motion to stay the
execution of the judgment which was filed by said counsel and was granted by respondent Judge over
the opposition of petitioner's counsel. Again, when the same counsel for defendant filed a motion for a
new trial, said motion was granted by respondent Judge in spite of the vigorous objection of counsel for
the petitioner and his co-plaintiffs. And then the petitioner became aware of the fact that his adversary,
the defendant Pedro Bravo, had been boasting in San Carlos that he was sure to win his case because of
his new lawyer.

We believe that the petitioner — the layman that he is — did not take a belligerent or arrogant attitude
toward respondent Judge. What he did was to request his lawyer, Atty. Macaraeg, to approach
respondent Judge in his chamber and suggest to him to refrain from hearing the case on the new trial,
precisely in order that respondent Judge might not be embarrassed or exposed to public odium. There is
nothing in the record which shows that when respondent Judge refused to disqualify himself, the
petitioner insisted in asking for his disqualification. If the request of petitioner for respondent Judge to
disqualify himself came to the knowledge of the public it was because respondent Judge himself brought
up the matter in open court.

While We consider it improper for a litigant or counsel to see a judge in chambers and talk to him about
a matter related to the case pending in the court of said judge, in the case now before Us We do not
consider it as an act of contempt of court when petitioner asked his counsel to see respondent Judge in
his chamber and request him to disqualify himself upon a ground which respondent Judge might
consider just or valid. It is one thing to act not in accordance with the rules, and another thing to act in a
manner which would amount to a disrespect or an affront to the dignity of the court or judge. We
believe that the circumstances that led respondent Judge to declare petitioner in direct contempt of
court do not indicate any deliberate design on the part of petitioner to disrespect respondent Judge or
to cast aspersion against his integrity as a judge. On the contrary, it may be said that petitioner wanted
to avoid cause for any one to doubt the integrity of respondent Judge. This is so because when a party
litigant desires or suggests the voluntary disqualification of a judge, it is understood, without saying it in
so many words, that said litigant — having knowledge of the past or present relationship of the judge
with the other party or counsel — feels that no matter how upright the judge is there is peril of his being
unconsciously swayed by his former connection and he may unwittingly render a biased or unfair
decision. Hence, while it may be conceded that in requesting the disqualification of a judge by reason of
his relation with a party or counsel there is some implication of the probability of his being partial to one
side, the request can not constitute contempt of court if done honestly and in a respectful manner, as
was done by petitioner in the present case. Perhaps the fault of petitioner, if at all, is his having asked his
counsel to make the request to respondent Judge inside the latter's chamber.

The following observation of this Court, speaking through Mr. Justice Dizon, is relevant to the question
before Us:

Petitioner invoking the provisions of section 1, Rule 126 of the Rules of Court, argues that the case of
respondent judge does not fall under any one of the grounds for the disqualification of judicial officers
stated therein. Assuming arguendo that a literal interpretation of the legal provision relied upon justifies
petitioner's contention to a certain degree, it should not be forgotten that, in construing and applying
said legal provision, we cannot disregard its true intention nor the real ground for the disqualification of
a judge or judicial officer, which is the impossibility of rendering an impartial judgment upon the matter
before him. It has been said, in fact, that due process of law requires a hearing before an impartial and
disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of an
impartial judge (30 Am. Jur. p. 767). Moreover, second only to the duty of rendering a just decision, is the
duty of doing it in a manner that will not arouse any suspicion as to its fairness and the integrity of the
Judge. Consequently, we take it to be the true intention of the law — stated in general terms — that no
judge shall preside in a case in which he is not wholly free, disinterested, impartial and independent (30
Am. Jur. supra) . . . . 6 (Emphasis supplied).
It is in line with the above-quoted observation that this Court, in amending the Rules of Court, added the
second paragraph under Section 1 of Rule 137, which provides that a judge in the exercise of his sound
discretion may disqualify himself from sitting in a case for just or valid grounds other than those
specifically mentioned in the first paragraph of said section.7 "The courts should administer justice free
from suspicion or bias and prejudice; otherwise, parties litigants might lose confidence in the judiciary
and destroy its nobleness and decorum." 8

Respondent Judge declared petitioner in contempt of court after the latter answered "Yes, sir" to this
question of the judge: "Do you doubt the integrity of the presiding Judge to decide this case fairly and
impartially because the lawyer of the other party was my former assistant? Do you doubt? Just answer
the question?" We believe that petitioner had not committed an act amounting to contempt of court
when he made that answer. The petitioner had not misbehaved in court, or in the presence of
respondent Judge, as to obstruct or interrupt the proceedings. Neither did the petitioner act in a manner
that was disrespectful to respondent Judge. When petitioner answered "Yes, sir" to the question asked
by respondent Judge, petitioner simply expressed his sincere feeling under the circumstances. In order
that a person may be summarily punished for direct contempt of court, it must appear that his behavior
or his utterance tends to obstruct the proceedings in court, or constitutes an affront to the dignity of the
court. As stated by this Court, "Contempt of court presupposes a contumacious attitude, a flouting or
arrogant belligerence, a defiance of the court . . . ."9

We commend the zeal shown by respondent Judge in his effort to protect his own integrity and the
dignity of the court. We are constrained to say, however, that he had gone a little farther than what was
necessary under the circumstances. We are inclined to believe that respondent Judge felt offended when
petitioner answered "Yes, sir" to the question adverted to in the preceding paragraph. But the petitioner
was simply truthful and candid to the court when he gave that answer. It would have been unfair to
respondent Judge had petitioner answered "No, sir," because then he would not be sincere with the
court, and he would be inconsistent with the request that he made through his counsel for respondent
Judge to inhibit himself from further hearing the case. When respondent Judge asked that question, he
necessarily expected a truthful answer from petitioner, and indeed petitioner gave him the truthful
answer. We are not persuaded that in so answering petitioner meant to be disrespectful, offensive or
insulting to respondent Judge. Nor do We consider that in so answering petitioner meant to cast
reflection on the integrity and honesty of respondent Judge. We believe that in so answering the
petitioner was simply manifesting the misgiving of an ordinary layman about the outcome of his case
that is going to be tried by a judge who has been closely associated with the counsel for his adversary.
The petitioner would never have expressed that misgiving of his had respondent Judge not asked him in
open court a question that evoked that answer. A judge can not prevent any person — even a litigant or
counsel in a case before him — to entertain in his mind an opinion about him as a judge. Certainly, any
person is entitled to his opinion about a judge, whether that opinion is flattering to the judge, or not. It
would be different if a person would deliberately and maliciously express an adverse opinion about a
judge, without reason, but simply to malign and discredit the judge. In the case now before Us We
believe that petitioner did not mean to malign or discredit respondent Judge in answering as he did. It
can be said that petitioner was simply moved by a desire to protect his interests in the case pending
before the court, presided by respondent Judge. A citizen of this Republic is entitled to expect that our
courts of justice are presided by judges who are free from bias and prejudice — and it should not be
made a count against the citizen if he so expresses himself truthfully, sincerely, and respectfully. A judge,
as a public servant, should not be so thin-skinned or sensitive as to feel hurt or offended if a citizen
expresses an honest opinion about him which may not altogether be flattering to him. 10 After all, what
matters is that a judge performs his duties in accordance with the dictates of his conscience and the light
that God has given him. A judge should never allow himself to be moved by pride, prejudice, passion, or
pettiness in the performance of his duties. And a judge should always bear in mind that the power of the
court to punish for contempt should be exercised for purposes that are impersonal, because that power
is intended as a safeguard not for the judges as persons but for the functions that they exercise.

It is worth mentioning here that numerous cases there have been where judges, and even members of
this Court, were asked to inhibit themselves from trying, or from participating in the consideration of, a
case, but scarcely were the movants punished for contempt even if the grounds upon which they based
their motions for disqualification are not among those provided in the rules. It is only when there was
direct imputation of bias or prejudice, or a stubborn insistence to disqualify the judge, done in a
malicious, arrogant, belligerent and disrespectful manner, that movants were held in contempt of court.
11 And this liberal attitude of the courts is in keeping with the doctrine that "The power to punish for
contempt of court should be exercised on the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order to retain that respect without which the
administration of justice must falter or fail." 12 The power to punish for contempt, being drastic and
extraordinary in its nature, should not be resorted to unless necessary in the interest of justice. 13

Wherefore, the order of respondent Judge dated February 10, 1964, in Civil Case No. 13259 of the Court
of First Instance of Pangasinan, declaring petitioner in direct contempt of court and ordering him to pay
a fine of P50.00, is hereby annulled and set aside; and it is ordered that the sum of P50.00, paid under
protest by petitioner as a fine, be refunded to him. No costs. It is so ordered.

WILLIAM S. UY vs. ATTY. FERMIN L. GONZALES

A.C. No. 5280: March 30, 2004

FACTS:

Complainant engaged the services of respondent lawyer to prepare and file a petition for the issuance of
a new certificate of title. After confiding with respondent the circumstances surrounding the lost title
and discussing the fees and costs, respondent prepared, finalized and submitted to him a petition to be
filed before the Regional Trial Court.

When the petition was about to be filed, respondent went to complainant’s office demanding a certain
amount other than what was previously agreed upon. Respondent left his office after reasoning with
him. Expecting that said petition would be filed, he was shocked to find out later that instead of filing the
petition for the issuance of a new certificate of title, respondent filed a letter-complaint against him with
the Office of the Provincial Prosecutor for Falsification of Public Documents. The letter-complaint
contained facts and circumstances pertaining to the transfer certificate of title that was the subject
matter of the petition which respondent was supposed to have filed.

Respondent claims that he gave complainant a handwritten letter telling complainant that he is
withdrawing the petition he prepared and that complainant should get another lawyer to file the
petition thereby terminating the lawyer-client relationship between him and complainant; that there
was no longer any professional relationship between the two of them when he filed the letter-complaint
for falsification of public document; that the facts and allegations contained in the letter-complaint for
falsification were culled from public documents procured from the Office of the Register of Deeds.

The IBP found him guilty of violating Rule 21.02, Canon 21 of the Canons of Professional Responsibility
and recommended for his suspension for 6 months.

ISSUE: Whether or not respondent violated Canon 21 of the CPR?

HELD:

No. Evidently, the facts alleged in the complaint for Estafa Through Falsification of Public Documents filed
by respondent against complainant were obtained by respondent due to his personal dealings with
complainant. Respondent volunteered his service to hasten the issuance of the certificate of title of the
land he has redeemed from complainant. Clearly, there was no attorney-client relationship between
respondent and complainant. The preparation and the proposed filing of the petition was only incidental
to their personal transaction.

Whatever facts alleged by respondent against complainant were not obtained by respondent in his
professional capacity but as a redemption of a property originally owned by his deceased son and
therefore, when respondent filed the complaint for estafa against herein complainant, which necessarily
involved alleging facts that would constitute estafa, respondent was not, in any way, violating Canon 21.
There is no way we can equate the filing of the affidavit-complaint against herein complainant to a
misconduct that is wanting in moral character, in honesty, probity and good demeanor or that renders
him unworthy to continue as an officer of the court. To hold otherwise would be precluding any lawyer
from instituting a case against anyone to protect his personal or proprietary interests.

PETITION DISMISSED for lack of merit.

SECOND DIVISION
ESTRELLA TIONGCO YARED (now deceased) substituted by one of her heirs, CARMEN MATILDE M.
TIONGCO petitioner, vs. HON. RICARDO M. ILARDE, Presiding Judge, Regional Trial Court of Iloilo, Br. 26,
JOSE B. TIONGCO and ANTONIO G. DORONILA, JR., respondents.

Before us is a petition for certiorari under Rule 65 assailing the Order dated March 17, 1994[1] of the
Regional Trial Court of Iloilo City, Branch 26, which reinstated an earlier order cancelling the notice of lis
pendens annotated on the back of Transfer Certificates of Title Nos. T-92383 and T-5050, of the Registry
of Deeds of Iloilo City covering Lots 3244 and 3246, respectively, located in Iloilo City.

The relevant facts are summarized as follows:

On October 17, 1990, petitioner Estrella Tiongco Yared filed an amended complaint[2] before the
Regional Trial Court, 6th Judicial Region, Branch XXVI, against private respondents Jose B. Tiongco and
Antonio Doronila, Jr. Docketed as Civil Case No. 19408, the action was one for "annulment of affidavit of
adjudication, sales, transfer certificates of title, reconveyance and damages.

In brief, the amended complaint alleged that respondent Tiongco, on the basis of an affidavit of
adjudication dated April 17, 1974 alleging that he is the sole surviving heir of the previous owner, Maria
Luis de Tiongco, succeeded in having the subject properties registered in his name, to the prejudice of
the other surviving heir of the previous owner, petitioner among them. Petitioner and respondent
Tiongco's father were siblings, and both were among several heirs of Maria Luis de Tiongco. The
aforesaid affidavit of adjudication was registered with the Office of the Register of Deeds of Iloilo City on
May 10, 1974. Petitioner prayed that the properties be reconveyed to the original registered owners,
subject to partition among the lawful heirs, and that respondent Tiongco be ordered to pay damages
and costs.

To protect her interest in the properties during the pendency of the case, petitioner caused to be
annotated on Transfer Certificate of Title Nos. T-52547, T-4666 and T-52546,[3] which covered Lot Nos.
3244, 3246 and 1404, respectively. TCT Nos. T-92383 and T-5050 were derived or transferred from TCT
Nos. T-52547 and T-4666 respectively and registered in the name of Tiongco.

After respondent Jose B. Tiongco filed his answer, trial ensued during which, on three separate
occasions, he filed motions seeking the cancellation of the notices of lis pendens.[4] All these motions
were denied.[5]

On December 14, 1993, the respondent judge issued a Decision[6] dismissing petitioner's complaint and
private respondent's counterclaim. The trial court found that petitioner's cause of action had already
prescribed.

Petitioner filed a notice of appeal[7]on December 17, 1993. As before, respondent Tiongco filed a
motion for cancellation of the notices of lis pendens[8] dated December 21, 1993; this was denied in an
Order dated January 10, 1994.[9] He filed a "Second Motion for Reconsideration"[10] which was also
denied in an Order dated January 26, 1994.[11] Displaying remarkable tenacity, respondent Tiongco filed
a "Third Motion for Reconsideration."[12] This time, however, his arguments proved persuasive. In an
Order[13]dated February 14, 1994, the respondent judge ruled to wit:

In the light of the ruling laid down in Magdalena Homeowners Association Inc. vs. Court of Appeals, 184
SCRA 325; 330 (1990), cited in Vda. De Kilayko vs. Tengco, 207 SCRA 600; 614-615 (1992), that "the
continuance or removal of a notice of lis pendens is not contingent on the existence of a final judgment
in the action and ordinarily has no effect on the merits thereof so that the notices of lis pendens in the
case at bar may, on proper grounds, be cancelled notwithstanding the non-finality of the judgment of
this Court brought about by plaintiff's appeal and considering the finding of this Court that plaintiff's
action had already prescribed, which finding is based on the admitted fact that the questioned deed of
adjudication was registered way back of May 10, 1974 so that the possibility of this finding being
reversed is quite remote if not totally nil and, considering further, the circumstances obtaining in this
case, among which are: (1) that the criminal complaint for perjury filed by plaintiff against defendant
Jose B. Tiongco based on the same deed of adjudication had already been dismissed with finality also on
the ground of prescription; (2) that the occupants of the property who were alleged as formerly paying
rentals to herein plaintiff, Estrella Tiongco Yared, had already recognized defendant's ownership and had
long stopped paying rentals to plaintiff without the latter intervening, much less, contesting the decision
in Civil Case No. 15421 where defendant Jose B. Tiongco was declared with finality as the true and lawful
owner of Lots Nos. 3244 and 3246; and (3) that, if at all, the present claim of plaintiff covers but a very
small portion of subject lots consisting only a total of about 64 square meters hence, it would be unfair
to the defendant who has torrens title covering the parcels of lands solely in his name to have the same
subjected to the harsh effect of such a encumbrance; the Court, in view of all the foregoing
considerations and upon further review of the records, hereby reconsiders its stand on the subject
matter of lis pendens and so holds that the continued annotation of subject notices of lis pendens is
intended to molest the defendant, Jose B. Tiongco, and is not necessary to protect the rights of plaintiff
as such rights, if any, are now foreclosed by prescription.

This time, it was petitioner's turn to seek reconsideration.[14] On March 4, 1994, the public respondent
issued an Order[15] reversing himself on the ground that (1) it had already lost jurisdiction over the case
due to the expiration of the last day to appeal of both parties, (2) the notice of appeal has been
approved, and (3) the records had been ordered elevated to the Court of Appeals.

Private respondent Tiongco filed another motion for reconsideration[16] against the Order dated March
4, 1994. On March 17, 1994, the respondent judge issued the order, subject of this petition, which is
quoted hereunder:

Considering that under Section 9, Rule 41 of the Rules of Court, although appeal had already been
perfected, the Court, prior to the transmittal of the records to the appellate court, may issue orders for
the protection and preservation of the rights of the parties which do not involve any matter litigated by
the appeal and considering that in the case at bar, lis pendens is not a matter litigated in the appeal and
the records have not as yet been transmitted to the appellate court so that this Court still has jurisdiction
to issue the Order of February 14, 1994 cancelling the notices of lis pendens annotated on TCT No. T-
92383 covering Lot 3244 and on TCT No. T-5050 covering lot 3246 and considering further, that the said
Order does not direct cancellation of lis pendens annotated on TCT No. T-89483 covering Lot no. 1404
which contains a total area of 1,587 square meters where the area of 64 square meters claimed by
plaintiff can very well be taken; as prayed for by the defendant Jose B. Tiongco, the Order of March 4,
1994 is hereby reconsidered and set aside and the Order of February 14, 1994 is hereby reconsidered
and set aside and the Order of February 14, 1994 cancelling the notices of lis pendens on TCT No. T-
92383 covering lot 3244 and on TCT No. T-5050 covering lot 3246 is hereby reinstated.

On April 5, 1994, the Register of Deeds cancelled the annotation of notices of lis pendens.[17]

Feeling that a motion for reconsideration would be fruitless, petitioner filed the instant special civil
action for certiorari, alleging that:

THE HONORABLE RESPONDENT JUDGE ACTED CAPRICIOUSLY, WHIMSICALLY AND WITH GRAVE ABUSE OF
DISCRETION IN ORDERING THE CANCELLATION OF THE NOTICES OF LIS PENDENS ANNOTATED AT THE
BACK OF THE CERTIFICATES OF TITLE THAT ARE THE SUBJECT OF THE CIVIL CASE NO. 19408, AS THESE
ARE AMONG THE DOCUMENTS THAT ARE SOUGHT TO BE DECLARED NULL AND VOID BY THE HEREIN
PETITIONER.

The doctrine of lis pendens is founded upon reasons of public policy and necessity, the purpose of which
is to make known to the whole world that properties in litigation are still within the power of the court
until the litigation is terminated and to prevent the defeat of the judgment or decree by subsequent
alienation.[18] The notice of lis pendens is an announcement to the whole world that a particular real
property is in litigation, and serves as a warning that one who acquires an interest over said property
does so at his own risk, or that he gambles on the result of the litigation over said property.[19]

Rule 13, Section 14 of the 1997 Rules of Civil Procedure[20] and Section 76 of Presidential Decree No.
1529,[21] otherwise known as the Property Registration Decree provide the statutory bases for notice of
lis pendens. From these provisions, it is clear that such a notice is proper only in:

a) An action to recover possession of real d) An action for partition; and

estate;
b) An action to quiet title thereto;
c) An action to remove clouds thereon;
e) Any other proceedings of any kind in Court
directly affecting title to the land or the use or
occupation thereof or the building thereon.[22]
Thus, all petitioner has to do is to assert a claim of possession or title over the subject property to put
the property under the coverage of the rule.[23] It is not necessary for her to prove ownership or
interest over the property sought to be affected by lis pendens.

Whether as a matter, of procedure[24] or substance,[25] the rule is that a notice of lis pendens may be
cancelled only on two (2) grounds, namely (1) if the annotation was for the purpose of molesting the
title of the adverse party, or (2) when the annotation is not necessary to protect the title of the party
who caused it to be recorded.[26]

The petition should be dismissed, there being a clear violation of the doctrine of judicial hierarchy that
we have taken pains to emphasize in past jurisprudence.

Thus, we ruled in Vergara v. Suelto[27] that:

[t]he Supreme Court is a court of last resort, and must so remain if its is to satisfactorily perform the
functions assigned to it by fundamental charter and immemorial tradition. It cannot and should not be
burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-
called extraordinary writs should be exercised only where absolutely necessary or where serious and
important reasons exist therefor. Hence, that jurisdiction should generally be exercised relative to actions
or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or
agencies whose acts for some reason or another, are not controllable by the Court of Appeals. Where
the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional
Trial Court, it is in either of these courts that the specific action for the writ's procurement must be
presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers
must strictly observe.

We reaffirmed this policy in People v. Cuaresma,[28] thus:

xxx A last word. This Court's original jurisdiction to issue writ of certiorari (as well as prohibition,
mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with
Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part
of their respective regions. It is also shared by this Court, and by the Regional Trial Court, with the Court
of Appeals (formerly Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa
Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted to
those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to
which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy
most certainly indicates that petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the
Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs
should be allowed only when there are special and important reasons therefor, clearly and specifically
set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate
demands upon the Court's time and attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of
the restriction on the jurisdiction of the Court of Appeals in this regard, supra-resulting from the deletion
of the qualifying phrase, "in aid of its appellate jurisdiction"-was evidently intended precisely to relieve
this Court pro tanto of the burden of dealing with applications for the extraordinary writs which, but for
the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it.

The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the
light of what it perceives to be a growing tendency on the part of litigants and lawyers to have their
applications for the so-called extraordinary writs, and sometimes even their appeals, passed upon and
adjudicated directly and, immediately by the highest tribunal of the land. The proceeding at bar is a case
in point. The application for the writ of certiorari sought against a City Court was brought directly to this
Court although there is no discernible special and important reason for not presenting it to the Regional
Trial Court.

The Court therefore closes this decision with the declaration, for the information and guidance of all
concerned, that it will not only continue to enforce the policy, but will require a more strict observance
thereof. (emphasis supplied)

Notwithstanding these pronouncements, parties persisted in disregarding the judicial hierarchy. As we

noted in Santiago v. Vasquez,[29]

One final observation. We discern in the proceedings in this case a propensity on the part of petitioner,
and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to
disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite
the fact that the same is available in the lower courts in the exercise of their original or concurrent
jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only
because of the imposition upon the precious time of this Court but also because of the inevitable and
resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded
or referred to the lower court as the proper forum under the rules of procedure, or as better equipped
to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that
this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling circumstance justify availment of a remedy
within and calling for the exercise of our primary jurisdiction.

This policy found further application in People v. Court of Appeals,[30] Aleria v. Velez, [31] and Tano v.
Socrates.[32] Only the presence of exceptional and compelling reasons justified a disregard of the rule.
[33]
Petitioner has failed to advance a satisfactory explanation as to her failure to comply with or non-
observance of the principle of judicial hierarchy. There is no reason why the instant petition could not
have been brought before the Court of Appeals, considering all the more that the appeal of the main
case was already before it. In Magdalena, Homeowners Association, Inc. v. Court of Appeals[34] we
ruled, to wit:

The notice of lis pendens-i.e., that real property is involved in an action-is ordinarily recorded without
the intervention of the court where the action is pending. The notice is but an incident in an action, an
extrajudicial one, to be sure. It does not affect the merits thereof. It is intended merely to constructively
advise, or warn, all people who deal with the property that they so deal with it at their own risk, and
whatever rights they may acquire in the property in any voluntary transaction are subject to the results
of the action, and may well be inferior and subordinate to those which may be finally determined and
laid down therein. The cancellation of such a precautionary notice is therefore also a mere incident in
the action, and may be ordered by the Court having jurisdiction of it at any given time. And its
continuance or removal-like the continuance or removal or removal of a preliminary attachment of
injunction-is not contingent on the existence of a final judgment in the action, and ordinarily has no
effect on the merits thereof.

In the case at bar, the case had properly come within the appellate jurisdiction of the Court of Appeals in
virtue of the perfection of the plaintiff's appeal. It therefore had power to deal with and resolve any
incident in connection with the action subject of the appeal, even before final judgment. The rule that
no questions may be raised for the first time on appeal have reference only to those affecting the merits
of the action, and not to mere incidents thereof, e.g., cancellation of notices of lis pendens, or, to repeat,
the grant or dissolution of provisional remedies. [emphasis supplied]

Had petitioner brought the instant petition before the Court of Appeals, the same could, and would,
have been consolidated with the appeal, thereby bringing under the competence of the said court all
matters relative to the action, including the incidents thereof.

Prescinding from the foregoing discussion, the disposition of the instant case will be incomplete without
a reference to the improper and unethical language employed by respondent Jose B. Tiongco, who is
also counsel for private respondents, in his pleadings and motions filed both before us and the court a
quo. It is his belief that counsel for petitioner, Atty. Marciana Deguma, "a rambunctious wrestler-type
female of 52 who does not wear a dress which is not red, and who stampedes into the courtroom like a
mad fury and who speaks slang English to conceal her faulty grammar,"[35] is impelled by less than less
than noble reasons in serving as counsel for petitioner. Her ulterior motive? "[T]o please and tenderize
and sweeten towards her own self the readily available Carmelo M. Tiongco,"[36] a retired police major
described by respondent Tiongco as Atty. Deguma's "nio bonito,"[37] an unmarried mestizo with curly
hair who lives with plaintiff for being houseless[38] who rents a place on the subject property sought to
be recovered by petitioner. Atty. Deguma, apparently are unmarried maiden of a certain age, is variously
described by respondent Tiongco as "a love-crazed female Apache [who] is now ready to skin defendant
alive for not being a bastard,"[39] and a "horned spinster and man-hungry virago and female bull of an
Amazon who would stop at nothing to molest, harrass (sic) and injure defendant - if only to please and
attract police-major Carmelo Tiongco Junior - the deeply desired object of her unreciprocated affections
- who happens not to miss every chance to laugh at her behind her back."[40] He claims that Atty.
Deguma, a lawyer with the Public Attorney's Office, is engaged in a game of one-upmanship with a fellow
employee, in that "she happens to be ambitious enough to secretly (that what she thought) plot to put
one over her office-mate who simply netted a corporal (if not a private) by aiming at no lest than an
IMDC major - hoping to catch him by sheer brass and audacity.[41] In so doing, Atty. Deguma is using the
PAO as a "marriage bureau for her own benefit.[42] Respondent Tiongco predicts that nothing good will
come out of opposing counsel's scheme since, quoting Voltaire, "outside of virtue, ther's (sic) no
happiness."[43]

Respondent Tiongco has achieved a remarkable feat of character assassination. His verbal darts, albeit
entertaining in a fleeting way, are cast with little regard for truth. However, he does nothing more than
to obscure the issues, and his reliance on the fool's gold of gossip betrays only a shocking absence of
discernment. To this end, it will be wise to give him an object lesson in the elementary rules of courtesy
by which we expect members of the bar to comport themselves. These provisions of the Code of
Professional Responsibility are pertinent:

CANON 8-A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARD HIS
PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.

Rule 8.01-A lawyer shall not, in his professional dealings, use languages which is abusive, offensive or
otherwise improper.

Rule 11.03-A lawyer shall abstain from scandalous, offensive or menacing language before the courts.

In Romero v. Valle,[44] we stated that a lawyer's actuations, "[a]lthough allowed some latitude of
remarks or comment in the furtherance of the cause he upholds, his arguments, both written or oral,
should be gracious to both court and opposing counsel and be of such words as may be properly
addressed by one gentleman to another." Otherwise, his use of intemperate language invites the
disciplinary authority of the court.[45] We are aghast at the facility with which respondent Atty. Jose B.
Tiongco concocts accusations against the opposing party and her counsel, although it is of public record
that in Tiongco v. Deguma, et a1.,[46] we dismissed as totally unfounded his charge of fraudulent
conspiracy and public scandal against petitioner, Major Tiongco, Atty. Deguma and even the latter's
superior at the Public Attorney's Office, Atty. Napoleon G. Pagtanac. His lexicon of insults, though
entertaining, do not find a ready audience in us, and he should be, as he is hereby, warned accordingly:
Homines qui gestant, quiqui auscultant crimina, si meo arbitratu liceat, omnis pendeat, gestores linguis,
auditores auribus.[47]

WHEREFORE, the petition fir certiorari is hereby DISMISSED, without pronouncement as to costs.

SO ORDERED.
YARED VS ILARDE

G.R. No. 114732

FACTS: Estrella Yared, substituted by Carmen Tiongco because the former is now dead, and Jose Tiongco
were opposing parties to a property in litigation. Carmen directly filed a motion for reconsideration to
the Supreme Court because Judge Ilarde of the RTC ordered the cancellation of annotation of notices of
lis pendens. The Supreme Court noticed and commented that Carmen has failed to comply with the
principle of judicial hierarchy and that she should have filed the petition in the CA first. However, the
Supreme Court also noticed the improper and unethical language employed by Jose Tiangco, who was
also a counsel for the private respondents, in his pleadings and motions filed both in SC and lower court.
He described the counsel of the petitioner, Atty. Marciana Deguma, - a rambunctious wrestler type
female of 52 who does not wear a dress which is not red, and who stampedes into the court room like a
mad fury and who speaks slang English to conceal her faulty grammar. Jose Tiongco alleged that Atty.
Deguma does that to please and tenderize and sweeten towards her own self the readily available
Carmelo Tiongco, an unmarried mestizo who lives with Carmen. He further described Atty. Deguma as an
unmarried maiden of certain age, and a love-crazed female Apache who is ready to skin the defendant
alive for not being a bastard, and a - horned spinster and man-hungry virago and female bull of an
Amazon. He also stated that Atty. Deguma is using PAO as a marriage bureau for her own benefit.

ISSUE: Whether Jose Tiongco, being also one of the counsels of the defendants, violated the Code of
Professional Responsibility

HELD: Yes. with the language that he employed, he obviously violated Canon 8-A rule 7.89 which states
that a lawyer shall not, in his professional dealings, use languages which is abusive, offensive, or
otherwise improper. he also violated rule 99.8; which says that a lawyer shall abstain from scandalous,
offensive, or menacing language before the courts. The SC also cited romero vs valle,) although allowed
some latitude of remarks or comment in furtherance of the cause he upholds, his arguments, both
written or oral, should be gracious to both court and opposing counsel and be of such words as may be
properly addressed by one gentleman to another.(jose Tiongco was merely warned. note: In the first part
of the case, even the title of the case, it was not mentioned whether jose Tiongco is a lawyer or not.
Then, there’s one sentence Which addressed him -Atty. Jose Tiongco.

<[A.M. OCA IPI No. 03-1687-P. March 1, 2004]

Sanches vs. TUPAS

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 1 2004.

A.M. OCA IPI No. 03-1687-P (Rafael Sanchez vs. Rubie P. Tupas, Clerk of Court, MCTC, Barotac, Viejo,
Iloilo.)
For resolution is a verified complaint dated June 16, 2003 filed by Rafael Sanchez charging Clerk of Court
Rubie Tupas with unauthorized practice of law.

Complainant alleges that a criminal complaint was filed against him relative to the seizure of his fishing
boat named "M/BCA Connie 14" he allegedly lent to one Antonio Galla for violation of section 90 (Use of
Active Gear) of R.A. No. 8550 otherwise known as the Philippine Fisheries Code of 1998[1]cralaw; that
said complaint and its supporting affidavit were subscribed and sworn to by the complaining witness and
the affiants before the respondent Clerk of Court Rubie Tupas who is not a member of the Integrated Bar
of the Philippines (IBP) and therefore engaged in unauthorized practice of law.

In her Comment, respondent Clerk of Court states that her administration of oath to the persons who
executed the criminal complaint and its supporting affidavit filed before the court was done "under the
color of authority" attached to the to the position of a Clerk of Court under Section 3, Rule 110 of the
Revised Rules of Criminal procedure.Respondent avers that under this rule, she is considered a public
officer charged with the enforcement of the law, and as such, she can administer oaths and that her acts
done as a clerk of court, such as notarizing criminal complaints and its supporting affidavit filed in court,
are considered as among those which are related in the exercise of her duties.

In his Reply, complainant insist that respondent Clerk of Court's allegations are but her presumptuous
and erroneous interpretation of the law; that the complaint and joint affidavit notarized by respondent
Clerk of Court are pleadings filed in court of law for the commencement of a criminal prosecution,
hence, only lawyers and members of the IBP and not a mere court employee as the respondent Clerk of
Court can notarize said instruments; and that Section 3, Rule 110 of the Revised Rules of Criminal
Procedure cited by respondent Clerk of Court enumerates the persons authorized by law to file the
complaint and not the persons who may notarize the complaint.

In a Memorandum dated January 9, 2004, the Office of the Court Administrator recommends the
dismissal of the complaint against respondent.The Court approves the recommendation.The complaint
of Rafael Sanchez is bereft of merit.

Section 3(a) Rule 112 of the revised Rules of criminal Procedure provides that affidavits of complainants
and his witnesses as well as other supporting documents shall be sworn to before, among others,
government officials authorized to administer oaths.

Section 41 of the Administrative code of 1987 as amended by R.A. No. 6788 reads:

Section 41.Officers Authorized to Administer Oath. - The following officers have general authority to
administer oaths: President; Vice President; Members and Secretaries of both Houses of the Congress;
Members of the Judiciary; Sectaries of Departments; Provincial governors and lieutenant-governors; city
mayors; municipal mayors; bureau directors; regional directors; clerk of courts, register of deeds; other
civilian officers in public service of the government of the Philippines whose appointments are vested in
the President and are subject to confirmation by the Commission on Appointments; all other
constitutional officers; and notaries public.(Emphasis supplied)
The term "clerk of courts" in the aforequoted provision is used as a general term.No specification was
made as to the Court to which said clerks of court belong.The intention of the law is clear, to remove the
limitation, and, hence, to authorize all clerk of courts regardless of whether they are clerks of the
Metropolitan Trial courts, Municipal Trial Court and Municipal Circuit Trial Courts, to administer oaths on
matter involving official business.[2]cralaw Hence, as Clerk of Court of MCTC, respondent has the
authority to administer oath of affidavits of parties and witnesses which are to be filed in court.

ACCORDINGLY, the instant complaint is DISMISSED for lack of merit.

SO ORDERED.

Very truly yours,

Tests of Employment Relations

Labor Fundamentals 2009-08-06

The determination of whether employer-employee relation exists between the parties is very important.
For one, entitlement to labor standards benefits such as minimum wages, hours of work, overtime pay,
etc., or to social benefits under laws such as social security law, workmen’s compensation law, etc., or to
termination pay, or to unionism and other labor relations provisions under the Labor Code, are largely
dependent on the existence of employer-employee relationship between the parties.

Another thing is that the existence of employer-employee relationship between the parties will
determine whether the controversy should fall within the exclusive jurisdiction of labor agencies or not.
If for example the parties are not employer-employee of each other, respectively, but perhaps partners
or associates, then any dispute between them will be not be covered by the jurisdiction of labor agencies
but by regular courts.

Three test to determine employer-employee relationship

There are three test commonly used to determine the existence of employer-employee relationship, viz.:

Four-fold test

Economic reality test

Two-tiered test (or Multi-factor test)

Four-fold test elements

The usual test used to determine the existence of employer-employer relationship is the so-called four-
fold test. In applying this test, the following elements are generally considered:

Right to hire or to the selection and engagement of the employee.

Payment of wages and salaries for services.

Power of dismissal or the power to impose disciplinary actions.

Power to control the employee with respect to the means and methods by which the work is to be
accomplished. This is known as the right-of-control test.

Right of control test is considered as the most important element in determining the existence of
employment relation.Of the above-mentioned elements, the right of control test is considered as the
most important element in determining the existence of employment relation. The control test initially
found application in the case of Viaña vs. Al-Lagadan and Piga, where the court held that there is an
employer-employee relationship when the person for whom the services are performed reserves the
right to control not only the end achieved but also the manner and means used to achieve that end.

Control test thus refers to the employer’s power to control the employee’s conduct not only as to the
result of the work to be done but also with respect to the means and methods by which the work is to
be accomplished.

In applying this test, it is the existence of the right, and not the actual exercise thereof, that is important.

Economic reality test

In view of today’s highly specialized workforce, the court are often faced with situations where the right-
of-control-test alone can no longer adequately determine the existence of employer-employer
relationship. Subsequently, another test has been devised to fill the gap, known as the economic reality
test.

In Sevilla v. Court of Appeals, the Court observed the need to consider the existing economic conditions
prevailing between the parties, in addition to the standard of right-of-control, to give a clearer picture in
determining the existence of an employer-employee relationship based on an analysis of the totality of
economic circumstances of the worker.

Economic realities of the employment relations help provide a comprehensive analysis of the true
classification of the individual, whether as employee, independent contractor, corporate officer or some
other capacity.

Under economic reality test, the benchmark in analyzing whether employment relation exists between
the parties is the economic dependence of the worker on his employer. That is, whether the worker is
dependent on the alleged employer for his continued employment in the latter’s line of business.

Applying this test, if the putative employee is economically dependent on putative employer for his
continued employment in the latter’s line of business, there is employer-employee relationship between
them. Otherwise, there is none.

Two-tiered test (or Multi-factor test)

The economic reality test is not meant to replace the right of control test. Rather, these two test are
often use in conjunction with each other to determine the existence of employment relation between
the parties. This is known as the two-tiered test, or multi-factor test. This two-tiered test involves the
following tests:

The putative employer’s power to control the employee with respect to the means and methods by
which the work is to be accomplished; and

The underlying economic realities of the activity or relationship.

References

Francisco vs. NLRC, G.R. No. 170087 August 31, 2006

Religious of the Virgin Mary vs. NLRC, G.R. No. 103606, October 13, 1999

Viaña vs. Al-Lagadan and Piga, 99 Phil. 408 (1956).

Sevilla v. Court of Appeals, G.R. Nos. L-41182-3, April 15, 1988.

A While" Versus "Awhile"

A while and awhile have different meanings. A while is a noun phrase and means “a period of time.” In
contrast, awhile is an adverb, and it means “for a time.” This may seem confusing, so keep reading for
several helpful examples and tricks.

By Mignon Fogarty, Grammar Girl December 15, 2016

308 100 tumblr58

In a previous Grammar Girl post, I talked about using while to mean although, but another point about
while can confound people: What is the difference between a while and awhile?

A while describes a time, a noun. The article a before while is a sure sign that you're dealing with a noun.
Notice in the following sentence that you could replace a while with another article-noun combination
such as a year:

It's been a while since Squiggly tried marmite.

It’s been a year since Squiggly tried marmite.

Both of those sentences describe a length of time: a while is more general and a year is more specific,
but they’re both a length of time. (Actually, when you use a year like that, it’s usually also at least
somewhat general because it probably hasn’t been exactly a year since Squiggly tried marmite.)

Awhile means "for a time,” and it's an adverb. Notice in the following sentence that you could replace
awhile with another adverb such as quietly:

Go play awhile.

Go play quietly.

a while versus awhile

Finally, just to make it confusing, if you rephrase Go play awhile and replace the adverb with a
prepositional phrase, you need the noun again because an adverb can't be the object of the preposition.

Go play awhile. (The adverb is modifying the verb.)

Go play for a while. (The article and noun are the object of the preposition.)
The Quick and Dirty Tip is that awhile and a while both describe a vague length of time, but you use the
one-word version when you need an adverb and the two-word version when you need a noun.

To tell the difference, you can test your sentence with other nouns and adverbs. If you can replace a
while with another article and noun such as an hour or a year, you know you want the two-word version.
If you can replace awhile with another adverb such as quietly, longer, or briefly, you know you want the
one-word version.

NOTE: As is so often the case, English usage isn’t simple. Most sources I checked (Chicago, Garner, AP
Stylebook) recommend the guidelines I give in this article, but I found one dissenter: an American
Heritage Dictionary usage note says that the noun phrase a while can be used adverbially, so that both
Go play awhile and Go play a while are correct. I’m sticking with my advice, but I thought you should
know that although it is the most common advice and the safest choice, it’s not universal.

Also, Garner and the Merriam-Webster online dictionary note that the use of awhile as the object of a
preposition (Go play for awhile) is increasing. It is still most often called an error, however, and Garner
calls it a “stage 1” error in his ranking system, which means it is the least acceptable kind of error.

Awhile Sentence Examples

Maybe you should hold off awhile until your shoulder gets better.

He'll be out of it for awhile," Xander said.

"I might be gone awhile, Talia," she said.

At last they reached a great forest, and, being quite tired, they decided to rest awhile and look for nuts
before going any further.

But it'll take awhile, and in the meantime, Qatwal is on its own.

The princess pondered awhile with a thoughtful smile and her luminous eyes lit up so that her face was
entirely transformed.

It's been awhile, love.

Awhile later, someone's voice broke her concentration.

"It might take me awhile to get used to the bald Brady," Tim said.

In 1582 he went to Geneva, studied there awhile under Theodore Beza, but had soon, owing to his
active advocacy of the Ramist philosophy, to remove to Basel.

Looking at his cold face, as he sat like a stern schoolmaster who was prepared to wait awhile for an
answer, Pierre felt that every instant of delay might cost him his life; but he did not know what to say.
Awhile later, the sound of furniture crashing against the tile floor startled her, and she sat up from where
she'd been dozing in front of the TV.

I don't know how you know this, but I stopped asking questions awhile ago.

Not after she'd been working at it awhile, Cynthia answered, not taking her eyes from the page as she
continued to work.

Nevermind. Wait here. Ully was working on something awhile ago. I was supposed to field test it for
him.

About the same time, or a little later (in the reign of Saladin), it believes that Hermon was colonized by a
population of 15,000 Hira and Yemenite Arabs, who had sojourned awhile in Hauran.

A contest awhile back called for people to speculate what would be the best device to hook up to the
Internet.

Karataev smiled thoughtfully and was silent awhile looking at the pieces.

It may be awhile by earth standards.

She managed to pull herself together after awhile but was unable to forget what she'd seen, what she'd
done.

You've been kicking my ass for awhile now.

There hasn't been any mail for quite awhile but the rent is still paid—for another two months.

Put finishing college on hold for awhile, she said without any sign of resentment.

Xander stayed in place for awhile, gaze on the scene at the building.

We are therefore forced to pause awhile, and probe beneath the surface.

Possibly the flesh was boiled off the bones at once ("scarification"), or left to rot in separate cists awhile;
afterwards the skeletons were collected and the cists re-used.

The history of the world is a scene of judgment where one people and one alone holds for awhile the
sceptre, as the unconscious instrument of the universal spirit, till another rises in its place, with a fuller
measure of liberty - a larger superiority to the bonds of natural and artificial circumstance.

It is not surprising that we are taking awhile to get it right.

After awhile they came to a great forest and, being tired and hungry, they thought they would rest a little
and look for nuts before continuing their journey.

He read awhile and then put out his candle, but relit it.
She passed into the sitting room, stood there thinking awhile, and then went into the maids' room.

She sat awhile, wondering what the meaning of it all having happened before could be, and without
solving this problem, or at all regretting not having done so, she again passed in fancy to the time when
she was with him and he was looking at her with a lover's eyes.

Having sat awhile with her visitors without understanding anything of what they were saying, she softly
left the room and went to the nursery.

It would take Sofia awhile before she came to his bed of her own accord.

The candle's wick popped loudly enough to wake her awhile later.

It has been awhile since you have been you.

Every once in awhile, he absorbed too much, and the result threw him on his back.

After awhile the need of some means of communication became so urgent that these outbursts
occurred daily, sometimes hourly.

After awhile he went nearer, and looking closely at the buds, found that they were folded up, leaf over
leaf, as eyelids are folded over sleeping eyes, so that Birdie thought they must be asleep.

Still, for awhile, the frost fairies did not notice this strange occurrence, for they were down on the grass,
so far below the tree-tops that the wonderful shower of treasure was a long time in reaching them; but
at last one of them said, Hark!

She smiled, hid her face in her handkerchief, and remained with it hidden for awhile; then looking up
and seeing Pierre she again began to laugh.

We'll be taking him to ICU in a few minutes and it will be awhile before we know anything.

The next morning, she lay curled in his arms for awhile before moving.

I've been avoiding talking to you about us for awhile, he said, aware he couldn't push it off any further.

He sat awhile in the hut joyfully recalling the details of his expedition and vividly picturing to himself
what would happen next day.

It took me awhile to adjust to it, too.