A.M. No. P-09-2628 Formerly A.M. No. OCA IPI No. 07-2686-P - WILSON C. ONG v. ARIEL R. PASCAIO
EN BANC
[A.M. NO. P-09-2628 : April 24, 2009]
[Formerly A.M. No. OCA IPI No. 07-2686-P]
WILSON C. ONG, Complainant, v. ARIEL R. PASCASIO, Sheriff IV, MTCC, Br. 5, Olongapo City, Respondent.
D E C I S I O N
CARPIO MORALES, J.:
In a Complaint-Affidavit dated February 22, 2007,1 Wilson C. Ong (complainant), the plaintiff in Civil Case No. 6120, Wilson C. Ong v. Trinidad Cabreros, assisted by her husband, Mr. Reynaldo Cabreros," for collection of sum of money (the civil case), which was lodged before the Municipal Trial Court in Cities, Branch 5, Olongapo City, charged Ariel R. Pascasio, Sheriff IV (respondent),2 with Grave Abuse of Authority, Dishonesty, and Malfeasance in the Performance of Public Functions as Branch Sheriff.
After the Decision dated November 20, 20033 rendered by the trial court in the civil case in favor of herein complainant became final and executory, a Writ of Execution dated February 5, 20044 was issued, which was implemented when, among other things, the judgment debtor's property was attached and sold at public auction.5
The period to redeem the property having lapsed and a Final Bill of Sale dated August 9, 20056 having been issued in complainant's favor, a Writ of Possession dated February 9, 20067 was issued.
On June 26, 2006, respondent sent the judgment debtors-Spouses Cabreros a Notice to Vacate.8 And he requested and received from complainant the initial amount of P1,500 and another P6,000 as "partial deposit" in the implementation of the writ, with the assurance that he (respondent) would deliver the Certificate of Possession on November 14, 2006. Respondent failed to do so,9 however.
Complainant later discovered on December 4, 2006 that on July 3, 2006, respondent received P210,000 from the judgment debtors via an Acknowledgement Receipt10 "[r]epresenting [d]eposit in [c]onnection with the WRIT OF EXECUTION . . . in [c]ompliance with the Judgment [s]tated in the WRIT."
Complainant claims that respondent had earlier assured him that the spouses-judgment debtors would voluntarily vacate the premises and they needed only two weeks to move to another residence; and after the lapse of two weeks, he approached respondent who merely told him that the spouses were still residing in the premises.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Complainant concludes that as a result of respondent's dishonesty, the implementation of the writ of possession had been unduly delayed, as the judgment debtors in fact filed a Motion to Quash Writ of Execution and Possession.11
Respondent, claiming that the decision of the trial court had been implemented except for the enforcement of the Notice to Vacate, admitted having received the P210,000 deposit from the judgment debtors. He claims, however, that complainant refused to receive the said amount, fearing that he (complainant) would not be able to recover the remaining balance of the judgment debt; and when he (respondent) attempted to return the amount to the judgment debtors, they also refused to accept it.
Respondent goes on to claim that he made several attempts to remove the spouses from the property, but "due to lack of manpower resources" he failed to do so.12
Respondent claims anyway that complainant was not prejudiced especially since "there has never been an urgency on Mr. Ong's part to be in physical possession of the property"; and as the trial court, by Order dated February 28, 2007, designated another sheriff to execute the final stage of its decision per request of complainant, there is nothing more that would hinder the implementation of the decision.13
By Memorandum of November 4, 200814, the OCA found respondent to have violated Section 9, Rule 141 and Section 14, Rule 39 of the Rules of Court in this wise:
x x x
The respondent's act of demanding money and receiving from the complainant the amounts of P1,500.00 and P6,000.00, allegedly as partial deposit for the implementation of the writ of possession is a clear violation of Section 915 , Rule 141 of the Rules of Court. This section requires a sheriff to estimate his expenses in the execution of the decision. The prevailing party will then deposit the said amount as approved by the court to the Clerk of Court who will in turn disburse the same to the sheriff, subject to liquidation. This procedure was not observed by the respondent. This Court has ruled that any amount received by the sheriff in excess of the lawful fees allowed by the Rules of Court is an unlawful exaction which makes him liable for grave misconduct and gross dishonesty.
x x x
The writ of possession was assigned for implementation to the respondent sheriff on 9 February 2006. The notice to vacate was served upon the defendant on 26 June 2006. As of the time of the filing of this complaint [in the first quarter of 2007], the writ was still pending implementation.
The respondent's failure to fully implement the writ of possession is inexcusable and constitutes dereliction of duty. His claim that he was prevented from fully implementing the writ due to lack of manpower resources is untenable. He is guilty of dereliction of duty as a sheriff for failing to execute the writ within 30 days from receipt thereof.
Pursuant to Section 1416, Rule 39 of the Rules of Civil Procedure, the respondent is required to make a return and submit it to the court immediately upon satisfaction in part or in full of the judgment; and if the judgment could not be satisfied in full, to make a report to the court within thirty (30) days after his receipt of the writ and to state why full satisfaction could not be made. The sheriff shall continue to make a report every thirty (30) days on the proceedings being taken thereon until the judgment is fully satisfied. The requirement aims to update the court as to the status of the execution and to give it an idea as to why the judgment was not satisfied. It also provides the court with insights as to how efficient court processes are after judgment has been promulgated. The over-all purpose of the requirement is to ensure the speedy execution of decisions.
Anent the allegation that the respondent received the amount of Two Hundred Ten Thousand Pesos (P210,000.00) without informing the complainant, respondent Sheriff Pascasio also ignored the procedures set forth in the Rules of Court. Good faith on the part of the sheriff, or lack of it, in proceeding to properly discharge his responsibility has no bearing on the matter, for the sheriff is chargeable with the knowledge that being the officer of the court tasked therefor, he is mandated to make due compliance. In the implementation of a writ of execution, only the payment of sheriff's fees may be received by the sheriffs. They are not allowed to receive any voluntary payments from parties in the course of the performance of their duties. To permit them to do so would be inimical to the best interests of the service because even assuming arguendo that such payments were given and received in good faith, this circumstance in itself would not dispel the suspicion that such payments were made for less than noble purposes. In fact, even the "reasonableness" of the amounts charged, collected and received by the sheriff would not be a defense where the procedure laid down in Section 9,17 Rule 141 of the Rules of Court has been clearly ignored. In short, sheriffs cannot, as in this case, receive payments from parties they are under obligation to assist.
The money accepted by the respondent amounting to Two Hundred Ten Thousand Pesos (P210,000.00) was not deposited with the Clerk of Court and there was no showing that this amount was subjected to the court's prior approval. The respondent sheriff should not be accepting money from a party, much less requesting for it[.]18 (Citations omitted) (Italics in the original; emphasis and underscoring supplied)
The Court finds the evaluation by the OCA well-taken. As detailed above, respondent committed Dishonesty, Dereliction of Duty, and violation of the Rules which calls for his dismissal from the service.19
Respondent was earlier dismissed from the service, however, in Musngi v. Pascasio20 where the Court noted his propensity to commit the same acts of misconduct and dishonesty every time an opportunity arose. The OCA in fact took note of this and while it is aware that the penalty of dismissal could no longer be imposed, it recommended that he be adjudged administratively liable for Dishonesty, Dereliction of Duty and violation of the provisions of Rules 39 and 141 of the Rules of Court without, however, specifying the penalty.
Respondent having been earlier dismissed from the service, the Court imposes on him a fine in the amount of Forty Thousand Pesos,21 to be deducted from the benefits due him.
WHEREFORE, this Court finds Ariel R. Pascasio, Sheriff IV, MTCC, Branch 5, Olongapo City, guilty of Dishonesty, Dereliction of Duty and violation of the provisions of Rules 39 and 141 of the Rules of Court. He having earlier been dismissed from the service, however, he is FINED the amount of Forty Thousand (P40,000) Pesos. The Financial Management Office, Office of the Court Administrator is authorized to deduct the sum of Forty Thousand (P40,000) Pesos from the benefits due him.
SO ORDERED.
Endnotes:
* On official leave.
1 Rollo, pp. 16-20. Complainant earlier filed a Complaint-Affidavit dated January 17, 2007 but the complaint-affidavit was returned to him per letter dated February 6, 2007 of then Court Administrator Christopher O. Lock, due to his failure to comply with the required proper jurat.
2 Sheriff III in some parts of the records.
3 Rollo, pp. 21-22. The dispositive portion of the Decision reads:
WHEREFORE, judgment by default is hereby rendered in favor of the plaintiff and against the defendants ordering said defendants to pay jointly and severally unto the plaintiff the sum of ONE HUNDRED EIGHTY ONE THOUSAND AND SEVEN HUNDRED SIXTY EIGHT (P181,768.00) PESOS with legal rate of interest thereon from November 20, 2002, date of filing of the complaint, until fully paid and the sum of THIRTY THOUSAND (P30,000.00) PESOS, as and for attorney's fees, plus costs.
4 Id. at 23-24.
5 Id. at 27-28.
6 Id. at 29-30.
7 Id. at 31.
8 Id. at 32.
9 Id. at 33. Respondent issued an Acknowledgement Receipt dated November 7, 2006. It was marked as Annex "I," and not Annex "J" as stated in the Complaint-Affidavit.
10 Id. at 34. Marked as Annex "J" and not Annex "I" as stated in the Complaint-Affidavit.
11 Id. at 35-36.
12 Id. at 87.
13 Ibid.
14 Id. at 103-107.
15 Should have been Section 10, Rule 141 of the Rules of Court. Rule 141 was revised by A.M. No. 04-2-04-SC effective August 16, 2004. It provides:
SEC. 10. Sheriffs, PROCESS SERVERS and other persons serving processes. -
x x x
With regard to sheriff's expenses in executing writs issued pursuant to court orders or decisions or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer of travel, guards' fees, warehousing and similar charges, the interested party shall pay said expenses in an amount estimated by the sheriff, subject to the approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex-officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. The liquidation shall be approved by the court. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriff's expenses shall be taxed as costs against the judgment debtor.
x x x
16 SEC. 14. Return of writ of execution. - The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefore. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties.
17 Should have been Section 10. In any event, Section 9, prior to its revision pursuant to A.M. No. 04-2-04-SC, reads:
SEC. 9. Sheriffs and other persons serving processes. -
x x x
In addition to the fees hereinabove fixed, the party requesting the process of any court, preliminary, incidental, or final, shall pay the sheriff's expenses in serving or executing the process, or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer travel, guard's fees, warehousing and similar charges, in an amount estimated by the sheriff, subject to the approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriff's expenses shall be taxed as costs against the judgment debtor.
18 Rollo, pp. 105-107.
19 Under Section 52(A) (1) of the Uniform Rules on Administrative Cases in the Civil Service, dishonesty is classified as grave offense and punishable by dismissal for the first offense.
20 A.M. NO. P-08-2454, May 7, 2008, 554 SCRA 1.
21 Vide Atty. Ernesto A. Tabujara III v. Judge Fatima Gonzales-Asdala, A.M. No. RTJ-08-2126, January 20, 2009.
