The Court adopts the factual history from its June 1, 2007 Memorandum Opinion.
On October 27, 2002, Philadelphia Police Officers Eric Riddick, Richard Riddick, and Mark Moore were on patrol in the vicinity of the 5500 block of Beaumont Avenue in Philadelphia, where several robberies and gunshots had been reported over the preceding several days. The Officers were dressed in plain clothes and driving an unmarked police car. As the officers traveled westbound on Beaumont Avenue, they observed three black males standing in front of a home. As the police car approached the three men, one of them, later identified as Vas, looked at Officer Eric Riddick over his sunglasses, ducked down behind the parked car, then jumped up from his crouched position, and began running eastbound on Beaumont Avenue toward 55th Street.
Officer Eric Riddick left the vehicle, spoke briefly to the other two men, then walked around the corner to the entrance to the driveway behind Beaumont Avenue. There, he saw Vas place a large, dark-colored handgun in the left front wheel well of a silver Mitsubishi parked in the driveway. Vas did not see Officer Riddick, who had backed out of the driveway after he observed Vas place a gun on the wheel well, and began walking toward him. When Vas reached the end of the driveway at 55th Street, Officer Riddick identified himself as a police officer and asked Vas to approach. Vas stated to the officer that he had done nothing, and again ran away.
Vas ran north on 55th Street, then turned westbound onto Florence Avenue. Vas ran onto the porch of a home at 5502 Florence Avenue, and banged on the door for the occupant to give him entry, shouting: "Aunt Lucy, Aunt Lucy, it's me, let me in, let me in." Officers Richard Riddick and Moore then joined Officer Eric Riddick in front of the 5502 Florence Avenue property. The officers apprehended Vas on the porch and detained him. Once Vas was detained, Officer Eric Riddick returned to the driveway where he had seen Vas place a gun in the wheel well of the silver Mitsubishi. There, he recovered a loaded nine-millimeter handgun and a loaded forty-caliber Glock pistol with an "obliterated" serial number, as well as a baseball hat, sunglasses and white tee shirt Vas had been wearing when first spotted. Vas was then arrested.
The procedural history in this matter includes two separate trials and a substantial number of filings. Vas's first trial began on October 25, 2005. Moments before the jury selection process was to begin, Vas informed the Court through counsel that he "wish[ed] to proceed pro se and have [Patrick Egan, Esq.] as backup counsel." The Court denied Vas's request to proceed pro se. Moments later, Vas requested again that he be allowed to represent himself.The Court heard argument on Vas's open-court, impromptu motion to proceed pro se, but denied the motion. Vas proceeded to trial represented by Mr. Egan and, after a two-day trial, was convicted for violating 18 U.S.C. § 922(g)(1).
On November 7, 2005, Vas timely filed several pro se post-conviction motions and Mr. Egan filed a Motion for New Trial. Mr. Egan then withdrew as counsel, and Edward Meehan, Esq. was appointed. Vas, through Mr. Meehan, filed a second Motion for New Trial. In a Memorandum Opinion and Order filed on May 31, 2006, the Court granted Vas's Motion for a New Trial, holding that the Court erred by not conducting a full inquiry into Vas's request to proceed pro se, as required by Faretta v. California.
Doc. Nos. 108 & 109.
422 U.S. 806, 835 (1975).
Vas's second trial began on February 5, 2007. Before jury selection, Vas made a request to represent himself at trial. The Court conducted an extensive colloquy with Vas, and concluded that Vas was competent to represent himself at trial. The Court appointed Mr. Meehan as back-up counsel. Trial proceeded, and the jury rendered its guilty verdict on February 8, 2007.
Vas did not file any post-trial motions, but filed a pro se Notice of Appeal. On August 31, 2007, David Rudenstein was appointed to represent Vas on appeal. Mr. Rudenstein challenged the sufficiency of the evidence at trial, and the Court's denial of Vas's motion to suppress physical evidence. The Court of Appeals affirmed the judgment of conviction and sentence. Vas timely filed pro se the present § 2255 petition. After his state court murder conviction, which was included in the Court's review of Vas's criminal history during sentencing, was vacated, Vas filed a pro se Motion for Adjustment or Reduction of Sentence in light of that state court ruling.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a prisoner serving a sentence in federal custody may petition the court which imposed the sentence to vacate, set aside, or correct the sentence by asserting that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." "Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors." "Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." "[T]he question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief. . . ." If the sentencing court finds "a denial or infringement of the constitutional rights of the prisoner," it may discharge or resentence a federal prisoner.
Armstrong v. United States, 382 F. Supp. 2d 703, 706 (E.D. Pa. 2005) (quotations omitted).
United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989) (quotations omitted). See 28 U.S.C. § 2255(b).
Unless some exception applies, a prisoner must raise claims on direct appeal before raising them on a petition for habeas corpus. One exception is for good cause: a prisoner may demonstrate that some external impediment, such as ineffective assistance of counsel, prevented him from raising a claim. Another exception exists where a fundamental miscarriage of justice would result from a failure to hear the claim.
Wise v. Fulcomer, 958 F.2d 20, 34 (3d Cir. 1992) (quotation omitted).
Because issues of ineffective assistance of counsel are raised throughout Vas's petition, the Court sets forth the standard of review for such claims here. Ineffective assistance of counsel claims are evaluated pursuant to the two-pronged test established by the Supreme Court in Strickland v. Washington. Under Strickland, counsel is presumed to have acted reasonably and to have been effective unless a petitioner can demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced petitioner. Counsel's performance is only deficient when it is "outside the wide range of professionally competent assistance."Prejudice occurs upon a showing that there is a reasonable possibility that but for counsel's deficient performance the outcome of the underlying proceeding would have been different.For example, "[a]n attorney cannot be ineffective for failing to raise a claim that lacks merit," because in such cases, the attorney's performance is not deficient, and would not have affected the outcome of the proceeding. Similarly, an ineffective assistance of counsel claim is not established upon the showing that an error had an effect on the proceedings; rather, a defendant must show that there is a reasonable probability that the outcome would have been different in the absence of such errors.
Lewis v. Horn, 581 F.3d 92, 106-07 (3d Cir. 2009).
Singletary v. Blaine, 89 F. App'x 790, 794 (3d Cir. 2004) (citing Moore v. Deputy Comm'r of SCI-Huntingdon, 946 F.2d 236, 245 (3d Cir.1991)).
In his long and repetitive petition spanning in excess of 150 pages, Vas raises a plethora of arguments in support of his petition. The Court has divided these into pretrial, trial, and sentencing issues.
Vas notes that the Government failed to produce certain discovery he requested before trial, including a recording, transcript and/or summary of a 911 call made by Jean Hasting on the night Vas was arrested in front of her home, and the internal affairs files of the three arresting officers. Vas maintains that the 911 records would have provided valuable information about the timing of events, and he could have used this information on direct and cross-examination to challenged the veracity of the police officers' accounts of events. Vas wished to examine the arresting officers' internal affairs files in hopes of finding evidence of specific prior acts of untruthfulness he could use to impeach the credibility of the officers at trial.
First, Vas argues that pretrial counsel was ineffective for failing to obtain these materials prior to trial. This argument fails, however, as pretrial counsel made, and actively pursued, discovery requests for the materials at issue, and asked the Court to order disclosure of these materials. The Court heard argument and entered rulings on these motions, some favorable to Vas. At no point did the Court find counsel to be incompetent or ineffective in pursuing access to these materials.
Next, Vas argues that the Court's denial of these discovery motions undermined his ability to effectively cross-examine witnesses against him. However, Vas failed to raise this issue through post-trial motion practice or on direct appeal, and therefore this argument is waived unless some exception applies. The exception Vas raises is ineffective assistance of appellate counsel. Appellate counsel opted not to challenge the Court's discovery rulings, telling Vas in a letter dated April 1, 2008: "In reading the transcript, I truly feel there are no issues to be raised . . . ."
See Amended Petition, Ex. 4.
Before trial, the Government produced a copy of a Computer Aided Dispatch record or "CAD" produced on the night of Vas's arrest. This is the only documentation the Government could find which related to the dispatch of officers to the scene. The Government was not able to locate a tape, transcript, or written summary of the 911 call. At Petitioner's suppression hearing, the Government informed the Court that, in the ordinary course of business, 911 calls are recorded but the recordings are not preserved after 30 days unless there is a request for preservation. This issue was the subject of discussion at multiple hearings. Ultimately, the Court found that the evidence requested did not exist and could not be produced. The Court did not find any Government misconduct.
9/13/05 Hr'g. Tr. 6, 8.
9/13/05 Hr'g Tr. 5-6, 8-9; 10/25/05 Trial Tr. 22-25.
10/25/05 Hr'g Tr. at 23, 25.
10/25/25 Hr'g Tr. at 26-27.
As the Court had ordered the Government to produced all available evidence regarding the 911 call, and then found it had done so, and as Petitioner does not present any evidence suggesting that this order or the Court's finding was in error, appellate counsel was not ineffective for failing to raise the issue on appeal, nor was Petitioner prejudiced by the failure to raise the issue. Moreover, Petitioner asserts only speculation that the 911 call may have contained relevant, exculpatory information about the timeline of events the night of his arrest.
Thomas v. Horn, 570 F.3d 105, 121 n.7 (3d Cir. 2009) (counsel is not ineffective for failing to raise an objection where there is no merit to the underlying claim of error).
Vas made multiple written and oral pretrial motions seeking the internal affairs files for the three arresting officers. The Court ruled that Vas was entitled to any exculpatory or impeachment evidence the Government found in the internal affairs files of Officers Eric and Richard Riddick, whom the Government intended to call as witnesses, and directed the Government to review the personnel and internal affairs files of Officers Eric Riddick and Richard Riddick for any relevant information before both trials. Ultimately, the internal affairs files were not produced, as the Government determined that there was no impeachment or exculpatory evidence therein. However, the Court's rulings on the issue were favorable to Vas, and appellate counsel was not ineffective for failing to appeal the favorable rulings.
Contrary to Vas's assertion in Ground Five, the Court never ordered the Government to make the internal affairs files available for the Court to review in camera. Rather, the Court ordered the Government to review the files and produce any Brady or Giglio materials to Vas. The Court, recognizing that such records are dynamic, ordered the Government to review them again in advance of the second trial. See Order dated January 12, 2007. The Government represented to the Court that there were no such materials. See Letter dated 1/19/17, Doc. No. 160, Ex. B. Petitioner has never put forth any plausible evidence to counter the Government's assertion that the files did not contain discoverable evidence. See United States v. Rodriguez, No. 07-709, 2008 WL 4925010, at *3 (E.D. Pa. Nov. 17, 2008).
Regarding Officer Moore, the Government acknowledged that his internal affairs file contained information which could be used to impeach Officer Moore's credibility. However, because the Government opted not to call Officer Moore as a witness, it did not produce his internal affairs file. At the suppression hearing, pre-trial counsel renewed Vas's discovery request for the internal affairs file, stating that the defense might be calling Officer Moore as a defense witness, and wished to see the file "to assist  in deciding whether . . . to call him or not."
As Vas and not the Government intended to call Officer Moore as a witness, the Court ruled that Vas was not entitled to any impeachment evidence contained in his internal affairs files. The Court found that while a defendant has the right to impeach his own witnesses, the Government is not obligated to produce non-exculpatory materials which can be used to impeach the truthfulness of a defense witness. The Court reaffirms its ruling here. Moreover, even if this ruling was in error, it was harmless. A reasonable jury could not infer that Officers Eric and Richard Riddick were testifying falsely in this case based solely on evidence that Officer Moore had engaged in untruthful behavior with regard to one or more unrelated cases in the past, and Vas put forth no evidence of possible biases, prejudices or ulterior motives which might motivate the three officers to lie in this case.
10/5/05 Hr'g Tr. 14, 31; 2/6/07 Trial Tr. 127-134.
Giglio v. United States, 405 U.S. 150, 154-55 (1972) (holding that the government must produce impeachment material regarding government witnesses); United States v. Presser, 844 F.2d 1275, 1278, 1280 (6th Cir. 1988) (government obligated to produce impeachment and exculpatory evidence regarding government witnesses, but was not obligated to disclose evidence that was merely impeaching and not material and exculpatory regarding defense witnesses).
With regard to all discovery issues raised in Vas's petition, the Court finds that the issues were raised and addressed by the counsel in the trial phase, and as there was ample legal support for the Court's rulings on these issues, appellate counsel was not ineffective for failing to challenge these rulings on appeal. In addition, Vas has failed to establish that the non-disclosure of the 911 call records or the non-disclosure of internal affairs files deprived him of a fair trial.Accordingly, having failed to raise these claims on direct appeal or establish cause why they were not raised, and having failed to establish that the challenged discovery rulings resulted in a fundamental miscarriage of justice, Vas is barred from challenging the Court's discovery rulings in this Petition.
Vas argues that the Court erred when it ruled on Vas's Motion to Suppress without reviewing the internal affairs files of the arresting officers in camera, and alleges that post-trial and appellate counsel were ineffective for failing to raise this issue on appeal. In fact, appellate counsel did challenge the Court's suppression ruling on direct appeal. The Court of Appeals upheld the rulings of this Court. Nevertheless, as appellate counsel did not challenge the ruling based on the credibility of the officers, the issue Vas raises in his petition, the Court will examine the merits of Vas's argument.
The Court of Appeals did not deem the issue waived, although post-trial counsel did not file any post-trial motions.
The Court held a suppression hearing on September 13, 2005. At the outset of that hearing, Vas's attorney noted that he had requested but not received the internal affairs files for the arresting officers. As stated, the Government noted that it had reviewed the internal affairs files of the officers it would call to testify at trial, Eric and Richard Riddick, and found no impeaching evidence therein, and further noted that it did not intend to call Officer Moore to testify and therefore his records were not relevant. Because Mr. Egan had some questions regarding the content of Officers Eric and Richard Riddick's files, the Court directed counsel to work together to determine whether there were discoverable materials therein. As there was then an open question as to whether impeachment materials would be found in the internal affairs files for Officers Eric and Richard Riddick, the Court proposed going forward with the suppression hearing but "wait[ing] to make findings on credibility and the like until such time as counsel were satisfied that no other evidence needed to be presented."
At the suppression hearing, the Government called only Eric Riddick to testify. He testified that he saw Vas place a gun on the tire of a silver Mitsubishi while in the driveway behind the 5500 block of Beaumont Street. Shortly thereafter, he identified himself to Vas as an officer, and Vas ran away from him and up on the front porch of a nearby home. Vas was detained on or near the front porch of Jean Hastings but was not arrested immediately. While he was detained by Officers Richard Riddick and Mark Moore, Officer Eric Riddick went back to the driveway, found two guns, with ammunition, hidden in the wheel well of the Silver Mitsubishi, and found clothing Vas had initially been seen wearing (including a hat, shirt, and sunglasses) a short way down the driveway from the guns. Because Vas had abandoned the gun, the Government argued that there had been no improper search and seizure of the guns and discarded clothing. When Officer Eric Riddick returned to where Vas was detained, he and his colleagues placed Vas under arrest.
After an on-the-record discussion, the Court allowed Vas to call Officer Moore to testify regarding his own memory of the events leading to the seizure of the guns and Vas's arrest. Officer Moore's account did not contradict Officer Eric Riddick's account, but he was not with Officer Riddick when he observed Vas hide a gun, nor did he see Officer Riddick find the guns after Vas was detained.
. . . reviewed all of the cases in which there are findings of any sort from [internal affairs] with respect to Richard Riddick and with respect to Eric Riddick. All of the findings in all of their cases are that they are exonerated or that there was no sustained evidence, no sustained complaint against them. That's as to Richard Riddick and as to Eric Riddick. They are the witnesses in my case. As I had mentioned to the Court, there is Giglio with respect to Mark Moore. I'm not calling him.
With that report, the Court considered the evidence it needed to decide the suppression motion closed, and denied the Motion to Suppress. The Court of Appeals has affirmed the Court's ruling.
10/5/05 Hr'g Tr. 13-14. Mr. Egan agreed with the Court that Officer Moore's internal affairs file was not necessary to the resolution of the Motion to Suppress, as the government was not relying upon his testimony. 9/13/05 Hr'g Tr. 24.
The Court does not find error in its treatment of the credibility evidence with regard to the Motion to Suppress. Therefore post-trial and appellate counsel were not ineffective in failing to challenge the rulings post-trial or on direct appeal. Accordingly, the Court finds that Vas is barred from challenging the Court's rulings on the Motion to Suppress in this Petition.
Vas argues that the Court erred when it denied Vas's first request to represent himself in advance of his second trial, resulting in the dismissal of many pro se motions Vas filed. Inconsistently, he also argues that when the Court did rule that he could proceed pro se, after Vas renewed his request on the day trial began, the Court did so without a proper colloquy. It is not clear from the petition how these rulings impacted on Vas' constitutional rights, and it is clear from the record that these rulings did not result in a miscarriage of justice.
On June 5, 2006, Vas filed a Motion to Change Appointed Counsel. He did not, at that time, ask to proceed pro se; he asked the Court to replace Mr. Meehan, his fourth attorney, with new counsel. The Court held a hearing on Vas's Motion on June 15, 2006, and denied the request to replace counsel but noted that Vas could make a written motion to represent himself, and the Court would decide that motion after a hearing. The Court held a second hearing on October 26, 2006, in response to Vas's allegation that Mr. Meehan had violated attorney-client privilege by discussing the case with his wife, who in turn talked about Vas's case with one of her own clients. Mr. Meehan disputed the allegation, and the Court found him credible.
Among other complaints, Vas argued that Mr. Meehan had failed to raise certain issues in Vas's post-trial motions after his first trial. While Mr. Meehan may have made strategic decisions not to raise certain issues Vas believed were meritorious, there was no prejudice to Vas as the Court granted his motion for a new trial on other grounds.
Vas subsequently filed a stream of pro se letter requests and pretrial motions, including a Motion to Assert/Invoke Defendant's Right of Self Representation and Remove Appointed Counsel filed on November 1, 2006. On November 21, 2006, the Court held a hearing regarding Vas's request to proceed pro se. At that hearing, the Court began conducting an appropriate colloquy, but Vas was uncooperative, refusing to provide direct answers to simple "yes" and "no" questions such as "do you understand that you have a right to counsel; yes or no?" Based on Vas's inability to directly answer simple questions posed early in the Court's colloquy, the Court denied Vas's Motion without conducting a full colloquy. Having denied Vas's Motion to represent himself, the Court also denied all pro se motions Vas had filed, except those that Mr. Meehan advised the Court he wished to pursue.
Doc. Nos. 120-23, 125, 129-39, 141, 148, & 149.
11/21/06 Hr'g Tr. 7; Order dated November 27, 2006.
When Vas renewed his request to proceed pro se on the day trial began, the Court conducted an extensive colloquy before determining that Vas's waiver of his right to counsel was knowing and voluntary. At this hearing, Vas was cooperative and provided responsive answers to the Court's questions. During the colloquy, the Court insured that he had the ability to represent himself, and insured that he understood his constitutional right to representation whether or not he could afford an attorney, the risks of proceeding without an attorney, the nature of the charges against him, the statutory minimum and maximum sentences he faced, and the possibility that the outcome of this case could impact on the homicide case pending against him in state court. The Court cautioned Vas against proceeding pro se, and appointed Mr. Meehan to serve as back-up counsel during the trial. The Court's colloquy was sufficient to determine whether Vas' waiver was knowing and voluntary, and post-trial and appellate counsel were not ineffective for failing to challenge the sufficiency of the colloquy post-trial.
In addition to arguing that he was prejudiced by the Court's granting of motion to proceed pro se, Vas also argues that he was prejudiced by the Court's failure to grant his motion earlier. He reasons that had he been allowed to proceed pro se pre-trial, the Court would have addressed his pro se pre-trial motions. Instead, after denying his motion to proceed pro se in November 2006, the Court dismissed his pro se motions without addressing the merits. However, the Court did allow Mr. Meehan to pursue any motions he believed were meritorious, and he pursued several discovery motions on Vas's behalf. Vas does not point to a single motion the Court dismissed without review which was meritorious and, if granted, would have altered the outcome of the trial.
Vas notes that the Court ruled on certain discovery motions after a telephone conference with counsel for both parties, and Vas was not invited to participate. At issue were the motions for the 911 call records and the internal affairs files of the arresting officers, which the Court has discussed at length infra. Vas was represented by counsel during the telephone conference. Therefore, under Fed. R. Cr. P. 43(b)(3), the Court committed no error and Vas was not prejudiced by his exclusion from the telephone conference.
For example, one motion asked the Court to secure the presence of Vas's private investigator at trial, despite the fact that Vas could have called that investigator to testify at trial without any action by the Court. Other motions asked the Court to appoint a second private investigator, and provide funds to pay that investigator, and to appoint an identification expert, and funds to pay that expert.
Accordingly, the Court cannot find that it erred in denying Vas's earlier request for self-representation or that Vas was prejudiced by this ruling. Nor does the Court find that it erred in granting his right to proceed pro se just prior to the start of trial. Thus, the Court cannot find that post-trial and appellate counsel were ineffective for failing to raise these issues, and the issues are not properly before the Court on this petition.
Vas argues: 1) that the Court erred when it failed to provide the jury with the police report or time of arrest when it requested that information; 2) that the Court erred when it sustained an objection and did not permit Vas to ask Officer Richard Riddick a broad question about whether or not he had committed perjury in prior proceedings; and 3) that the officers lied under oath.
During deliberations, the jury sent a question to the Court, which read: "Can we either see the police report for the arrest, or find out the time at which the defendant was placed under arrest?" Before the jury was brought in so that the Court could respond to their question, the Court had a lengthy discussion with Vas and the Government on the record, and ruled that it would deny both requests.
The Court denied the request for the time of arrest because it was not a fact in evidence, and the evidence was closed. Vas does not show otherwise in his petition.
Regarding the police report, Vas has failed to counter the Court's ruling that it was a hearsay document which corroborated testimony presented at trial, or the Court's concern that as an official document it might carry undue weight with the jury, prejudicing the defense.Furthermore, as the police report was corroborative of testimony from the arresting officers, much of the document was read to the jury verbatim, and Vas examined and cross-examined the arresting officers at length about the content of the report and the timeline of events, the Court fails to understand how preventing the report itself from going to the jury created a miscarriage of justice. Therefore, the Court finds that post-trial and appellate counsel were not ineffective in failing to raise these issues in post-trial motions or on appeal, and so the issue is waived.
See 2/6/07 Trial Tr. 166-68.
At trial, Vas asked Officer Richard Riddick: "Did you commit perjury at any of these hearings?" The Government objected and the Court sustained the objection. Vas now says this violated his right to conduct effective cross-examination of witnesses. Similarly, Vas argues that the Court should have permitted him to cross-examine Moore about unspecified prior misconduct documented in his internal affairs file, the precise nature of which was unknown to Vas.
Before a party may question a witness for impeachment purposes, he must possess a good faith, reasonable basis to believe that specific instances demonstrating character for untruthfulness, in fact, occurred. In the absence of such a belief, such questions can be harassing, embarrassing, or confusing to the jury. Where Vas was able to point to specific prior inconsistent statements about which he wished to cross-examine Eric Riddick, the Court allowed such cross-examination. However, Vas did not lay foundation cross-examining Officer Richard Riddick about his general truthfulness. His belief that Officer Richard Riddick had been untruthful in the past was based on mere speculation and was therefore not reasonable. Accordingly, the Court finds that it did not err in sustaining this objection and prohibiting Vas from posing broad questions about truthfulness to impeach his own and the Government's witnesses. Furthermore, as post-trial and appellate counsel were justified in not raising this issue post-trial, there was no ineffective assistance of counsel and the issue is waived.
See Fed. R. Ev. 611(a).
See 2/6/07 Trial Tr. 32.
3. Assertion That the Officers Lied under Oath.
The Court will not address this issue, as the jury assessed the credibility of the officers, the Court of Appeals upheld the verdict on Vas's sufficiency of the evidence challenge, and Vas alleges no fundamental defect in the proceedings or later-discovered evidence tending to prove the officers lied.
Finally, Vas argues that he was denied fair pre-trial, trial, and post-trial proceedings due to the Court's bias towards him. During the pre-trial stage, he filed a motion for the Court to recuse, which was denied after a hearing on October 26, 2006. Now, Vas again argues that the Court has been hostile, ill-tempered and impatient towards him in prior proceedings. The Supreme Court has held that such allegations are not sufficient without evidence of an inability to render fair judgment. Moreover, it is notable that none of the instances alleged in the Petition occurred in front of the jury.
Liteky v. United States, 510 U.S. 540 (1994).
Vas also argues that the Court made a statement with racial overtones at a hearing held on January 6, 2006, at which the Court granted his motion for new counsel. At that hearing, the Court said: "I need to address how you wish to proceed in terms of legal representation. You are still entitled to have court ordered representation, free of charge, because of your financial situation which is obvious to me-", to which Vas responded: "That's Good." What was obvious to the Court was that Vas's financial circumstances had not changed since his prior request for court appointed counsel had been approved, given his incarceration during that time. There was no racial meaning to that statement.
Accordingly, as Vas has not raised a meritorious claim, post-trial and appellate counsel were not ineffective for failure to raise the issue of bias. Accordingly, this issue, which was not raised on appeal, is waived.
At the conclusion of the second trial, the Court appointed Mr. Meehan to represent Vas in post-trial proceedings. Because Mr. Meehan failed to file a post-trial motion or sentencing memorandum, Vas asked the Court at sentencing if he could have different counsel or proceed pro se. The Court denied his request for alternative counsel, as he did not show good cause,but allowed Vas to proceed pro se when he expressed desire to do so, noting that "I have already been through this many times with you, I know that you are capable of representing yourself, you know what you are facing . . . ." Having conducted a full colloquy just three months earlier, and then presided over a trial where the Court observed Vas representing himself, the Court did not engage in a full Faretta inquiry at sentencing. Nor was it required to do so.
5/7/07 Hr'g Tr. 6-7, 23.
Good cause is defined as a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict with the attorney. United States v. Gibbs, 190 F.3d 188, 207, n. 10 (3d Cir. 1999). Although the Court conducted an inquiry as to whether such reasons were present in this case, Vas did not put forth convincing evidence that any of these had occurred with Mr. Meehan, his third appointed counsel.
United States v. McFadden, 630 F.2d 963, 971-72 (3d Cir. 1980).
As set forth in the revised Presentence Investigation Report ("PSR"), prepared by Leon C. King of the U.S. Probation Office on April 30, 2007, because Vas had at least two prior felony convictions for crimes of violence, he received a base offense level of 24 under Guideline § 2K2.1. He received an additional two points under the specific offense calculation because the Court found that one of the two guns he was convicted of possessing in this matter had an obliterated serial number, thereby resulting in a total offense level of 26.
See Apr. 30, 2007 Presentence Investigation Report ¶ 14. In assessing Vas's sentence, the Probation Office used the November 1, 2001 edition of the Guidelines Manual. Id. ¶ 13.
The Probation Office computed a criminal-history score of 17 based on six prior convictions. Vas objected to being assessed three additional points each for two state court convictions- carrying firearms without a license and third-degree murder- as both convictions arose out of the same facts and circumstances. At the May 7, 2007 sentencing hearing, the Court found that the firearms charge was related to the murder charge and reduced the criminal-history score from 17 to 14. This placed Vas in criminal-history category VI.
Given the total offense level of 26 and criminal-history category of VI, the advisory guideline range for imprisonment was 120 to 150 months. The statutory maximum for a charge under 18 U.S.C. § 922(g)(1), however, is 120 months. Accordingly, the Court found that the effective guideline range was 120 months. After considering all relevant factors, the Court imposed a 120-month sentence.
Vas challenges several findings made by the Court during the sentencing hearing in his Petition. For example, he challenges the Court's treatment of a resisting arrest conviction as a crime of violence over Vas's objection. The Court finds that this ruling was correct, as the Third Circuit has ruled that "resisting arrest necessarily involves confronting the authority of a police officer who is likely armed and charged with defending the public. Because the police officer is duty-bound to effectuate the arrest, the offense engenders a significant risk of conflict and, correspondingly, a significant risk of injury." Therefore, the Third Circuit held that resisting arrest "is, by definition, purposeful, aggressive and violent." Vas also challenges a two-point enhancement for possessing a gun with an obliterated serial number given the jury's finding in favor of Vas on a non-binding special interrogatory. The Court is permitted to make factual findings pertinent to a sentencing guideline range determination and was not bound by the jury's finding. Furthermore, while the jury needed to find that Vas had possessed a second gun with an obliterated serial number beyond a reasonable doubt, in making factual findings relevant to the guidelines determination the Court correctly applied the preponderance of evidence standard.Accordingly, the Court did not err in independently determining that the two-point enhancement applied. Finally, Vas challenges the three criminal history points given for the state murder conviction, as the conviction occurred after the conviction but before sentencing in the case before this Court. However, under Guideline § 4A1.2, App. Note 1, this was correct.
U.S. v. Stinson, 592 F.3d 460, 465 (3d Cir. 2010).
Unlike the jury, at sentencing the Court needed only determine that there was a second gun with an obliterated serial number by a preponderance of evidence. 5/7/07 Hr'g Tr. 26-27.
While these issues were not raised on direct appeal, Vas argues that his right to raise them here was not waived because appellate counsel was ineffective in failing to challenge these elements of his sentence. Because there was no merit to any of his arguments, however, the Court finds appellate counsel was not ineffective for failing to raise these sentencing issues on appeal, and the issues are now waived.
Finally, by a motion which, in the interest of justice, the Court construes as a supplement to his § 2255 petition, Vas argues that the Court should adjust or reduce his sentence because Vas was given three points at sentencing for a state court murder conviction which Vas claims was later reversed by the Superior Court of Pennsylvania. Those three points for this conviction changed his criminal history category from V to VI, and therefore resulted in a higher minimum sentence under the sentencing guidelines. In addition, the Court considered the entirety of his criminal history, including his murder conviction, in determining the appropriate sentence.
Johnson v. United States, 544 U.S. 295, 303-04 (2005).
The state court docket sheet indicates that on March 30, 2011, the Superior Court vacated the judgment of sentence and remanded the case for a new trial. On July 12, 2011, the docket indicates "only gun charge remains."
For an offense level of 26 and a criminal history in category V, the minimum guidelines sentence would be 110 months, compared to a minimum guidelines sentence of 120 months for criminal history category VI. 120 months is the statutory maximum regardless of the criminal history category.
Because the Court cannot conclude that Vas's sentence would have been the same in the absence of the murder conviction, the Court must ascertain the status of his state court murder conviction before it can determine whether it is necessary to vacate the sentence and conduct a new sentencing hearing. Accordingly, the Court will require the Government to submit to the Court the per curium opinion of the Pennsylvania Superior Court and any other documents which clarify the ruling of the Pennsylvania Superior Court, and documentation of any subsequent action by the Philadelphia Court of Common Pleas, on the homicide case and all related cases. The Court will reserve ruling on this issue only pending the Government's submission.


Although one component of the European Commission policy on the common principles of flexicurity *5 is to provide for flexible and reliable contract terms through labour laws, collective agreements, and the work organisation, the role of collective agreements was not prominent in the drafting of the ECA. At the same time, in the implementation of all elements of flexibility (institutional, working time, wage, and worker- and job-mobility elements) *6 , collective agreements definitely play a significant role, in addition to laws and in conjunction with individual employment agreements and regulations on employers’work procedures.
Because of the economic recession, there was no increase in unemployment insurance compensation or unemployment benefits and no expansion in the range of people eligible for benefits. In the final findings of a study completed in 2010 *7 , it was concluded that the focus in Estonia has been placed rather heavily on increasing the flexibility of the labour market and that labour and social policies have, to date, not facilitated the implementation of the balanced European social model in Estonia.
On account of the above, it is necessary to analyse the role of collective agreements in regulation of labour relations and achievement of flexicurity since the new ECA’s entry into force in Estonia, in comparison to other EU countries. This article is intended to answer the following questions: What is the coverage of collective agreements in Estonia, and what are the levels of these agreements; which material labour relations are regulated in Estonia by collective agreements; how do collective agreements regulate non-typical labour relations, work and rest time, and other work conditions in Estonia; how and on what conditions may collective agreements deviate from the imperative provisions of the Employment Contracts Act; and what legislative amendments would contribute to improvement in the regulation of collective agreements?
Of465 actual enterprise-level collective agreements, 105 have been entered into by those not representing trade unions. *10 The reason for such dualism in agreements from the angle of employees is that there are few trade-union members in Estonia. Trade unions have been set up in 6% of enterprises, and an employee representative has been elected in 13.3%of enterprises. *11 One reason the percentage of coverage by the agreements is higher than that of union membership is the provision in §4 (1) of the Collective Agreements Act *12 (CAA) by which a collective agreement can be applied to all workers at an enterprise, regardless of their membership in the trade union, if the parties to the agreement so agree. The second reason for the percentage of coverage by agreements being higher is the provision in §4 (4) of the CAA according to which the wages and the work- and rest-time conditions regulated by sector-based and nationwide agreements can be expanded to all workers in the relevant sector or to all enterprises in Estonia.
In many European countries, regardless of legislative initiative, the practice of transition from collective agreements made centrally (state and branch activity level) to enterprise-level agreements is not so common. An example is the practical outcome of the collective-agreement reform that was carried out in Holland, where industry-wide agreements cover 70% of all employees and around 10% of workers are covered additionally by enterprise-level collective agreements. *13 In Estonia, the situation is quite the opposite—the modest number of industry-wide agreements itself ensures a flexible process, but it also enables major differences in regulation of material work conditions within the same sector of activity and for employees of the same enterprise.
Pursuant to §2 (1) of the CAA, the role of a collective agreement in Estonia is relatively broad and one may enter into a collective agreement in different segments of the employment relationship. The subject fields of labour relations provided in §6 (1) of the CAA (wages, working and rest time, terms of employment, termination of contract, redundancy, occupational health and safety, retraining and training at work, refusal to work, and other terms that the parties regard as necessary to agree on) is regulated, with minor changes, in the most of the collective agreements entered into in the field of transport, communication, energy, the manufacturing industry, health care, service, and the public sector. *16 Although the list in §6 (1) of the repealed CAA does not provide for such highly important labour issues as promotion of employment, support for balance between work and family life, equal treatment, inclusion of employees in decision-making, and employees’ notification and consultation, one can say that these issues are regulated in some respects in Estonian collective agreements. However, collective agreements at their various levels seldom address gender equality issues and matters of achieving higher productivity, innovation, and quality of work with a view to stabilising the employment situation and cuttingcosts. In summary, the above-mentioned §6 (2) of the CAA allows collective agreements to regulate all and any work conditions as the partners deem necessary; however, it is the sample list contained in this provision that has had the greatest impact on the content of collective agreements in Estonia.
The European Commission’s policy on common principles of flexicurity also requires that relevant regulations be established for non-typical employees and forms of work and for reducing gaps between employees. *17 According to §1 (2) of the CAA, a collective agreement is a voluntary agreement—between employees or a union or federation of employees and an employer or an association or federation of employers—that regulates labour relations between employers and employees (including public-sector employees and officials). Collective agreements can be entered into at enterprise, sector, or national level, according to §3 (2) of the CAA. Under the definition given, trilateral collective agreements cannot be entered into in the case of non-typical forms of work between an agency offering temporary staff, its employees, and the enterprise that uses these staff.
A similar restriction applies to persons defined as only worker-like persons. For instance, entry into a collective agreement is prohibited between economically dependent individuals who operate as self-employed persons or under contract in the law of obligations (they are legally not considered as under an employment contract) and their contractual partners. Although in Estonia there is use of such people working as self-employed persons to provide services as are generally contracted by a specific employer (making this person dependent on such an employer), our labour laws do not use the term ‘economically dependent worker’ as is done in the Czech Republic *18 or in Germany. *19 Pursuant to §1 (4) of the ECA, provisions of the ECA do not apply to contracts under which persons who carry out work responsibilities are significantly independent in terms of selection of the nature, time, and location of the work.This author believes that the concept of ‘economically dependent worker’ should be regulated by the ECA and that adapted labour law should be applied to such workers.
However, according to the general spirit of theCAA, in a collective agreement it is possible to agree that certain working conditions (minimum wage, requirements as to the quality of the work, etc.) are applied both to the terms for agency staff used in the enterprise and for self-employed persons contracted for the work by the employer. For example,the collective agreement signed between the Union of Estonian Automobile Enterprises and the Estonian Transport and Road Workers’ Trade Union *20 requires the application of terms for working and rest time and for wages to both temp staff working in this field and those people working under a service contract.
The general spirit of theCAA also provides for entering into a collective agreement with an agency that rents labour as an employer. This is similar to the situation in Holland, which recognises collective agreements in establishing minimum working conditions for agency staff. *21 In 2003, Germany introduced the principle that agencies offering temporarystaff must apply the minimum terms for the relevant field of activity. *22 But since the objective of hiring staff from an agency is to cut costs, German law allows payment of a lower minimum wage to these staff than to direct employees in that specific branch of activity, provided that this has been agreed upon with trade unions in the given sector. *23 At the same time, under §111 (21) of the Equal Treatment Act, which was recently amended *24 , agency staff in Estonia must be subject to work‑ and rest-time, wage, occupational safety, and health terms similar to those for employees of the relevant enterprise. While in Italy, for instance, collective agreements are used to regulate the causes of use of temporary agency work (technology, production, and organisational) and specific activities (cleaning and construction) allowing for the use of agency staff *25 , our collective agreements do not provide for such regulation. A collective agreement concluded in AS Fortum Termest *26 obliges the employer to hire persons outside AS Fortum Termest to carry out renovation, construction, or similar work if the employees of AS Fortum Termest themselves are fully occupied, no in-house employees have the required training, or there are justified economic reasons. A collective agreement concluded in AS Eesti Post *27 lays down the employer’s obligation to inform the trade union every six months as to the number of agency staff, by unit.
Twenty per cent of our enterprises use telework (aka distance work). *28 Telework is indirectly defined in §6 (4) of the ECA; however, the law provides no specific terms for it. Since telework is a specific form of work and is increasingly common, it should have been legislated that the specific terms for telework may be agreed upon in collective agreements. This author’s opinion is that such a reference in the law would provide an impetus to the work partners in society to regulate this area more broadly with collective agreements. One of the few collective agreements that provide for telework has been concluded in the Chancellery of the Riigikogu. *29 The degree of regulation of teleworking via laws or collective agreements varies by country. In France, labour law designates telework as an agreement between the employer and employee within the framework of the existing collective agreement with regard to total annual working time, provided that time spent teleworking does not exceed 218 hours a year. *30 The national collective agreement in Belgium *31 regulates the terms for home-based telework, including the employer’s obligation to avoid isolation of teleworking employees and see to technical support and software protection.
The role of collective agreements in regulating the versatility of contractual relations is increasingly important from the angle of the flexicurity of labour relations. It is necessary to update the CAA with regard to non-typical agreements. In view of the novelty and complexity of these issues, it is important to use a combination of laws and collective agreements to regulate non-typical forms of work. Since the work conditions with non-typical forms of work are especially dependent on the specific area of activity and the nature of the work, the ability to regulate work conditions sensibly via only laws is clearly restricted. It is important to agree with the relevant partners at the government level on the framework provided by the ECA for agreements related to the work conditions of non-typical workers and as to which conditions should belong to the realm of collective agreements.
In the past decades, the role of the law, individuals, and collective agreements in regulating work conditions has significantly changed, in terms of both their essence and their interaction.
As a legal reference, in Estonia the collective agreement lies below law and higher than an individual employment contract in the hierarchy of legal sources. The provisions agreed upon in the collective agreement are mandatory for the parties who have entered into said agreement. Under §2 of the ECA, an agreement that is less favourable for the employee than what is prescribed by law (that is, a so-called derogatory agreement) is invalid, except if the possibility of agreement on derogation is provided for in the ECA. In comparison with the labour law that was in force until 2009 (where derogation that was less favourable for the employee was prohibited altogether), the role of agreements has thus been expanded. Although the lawmaker has not specified which contracts allow for making of derogations that are less favourable for the employee, the text of the ECA indicates that this category includes an individual agreement made between the employee and the employer, as well as a collective agreement. This principle is also supported by §4 (2) of the CAA, under which terms of a collective agreement that are less favourable than what is prescribed by law or some other legal act are invalid except when the possibility of entering into such an agreement is provided by law. Hence, if one explores the text of the ECA in its entirety (incl. the provisions on derogatory agreements) and proceeds from the rationale of the text, one may conclude that §2 of the ECA lays down a general principle of deviating from the law; however, the specific agreement that allows deviation from a specific provision of law to the detriment of the worker is determined by the very same provision of the ECA that allows such derogation.
When agreeing on working conditions that are less favourable than those prescribed by law, one should ask what is actually favourable for the employee. If the contract or law states that the condition is such a general principle as ‘reasonable time’, this can be interpreted differently, depending on the nature of the work. If the law clearly states who has priority in cases of redundancy, the derogation can be defined more clearly for employees in the relevant category. Finally it can be said that in Estonia it is not yet common to define a more favourable situation in the context of several conditions of the same collective agreement .
The ECA cites only three cases in which derogatory agreements in collective agreements are allowed: According to §97 of the ECA, collective agreements may, for economic reasons, establish a shorter term of notice in cases of termination of an employment contract than what is prescribed by law; §51 (3) of the ECA states that by collective agreement, the daily rest time can be reduced to less than 11 hours; and §46 (2) of the ECA states that a collective agreement may establish less favourable working time for up to one year for employees in the health-care, welfare, agriculture, and tourism sectors. One reason the derogatory role of a collective agreement is so modestly being established is clearly the fact that it is a new principle for employees’ representatives. For decades, the overall principle was application of a provision that is more favourable for employees. This is definitely also a key question for Estonian employees and employers unions in taking responsibility for entering into derogatory agreements. A study of collective labour relations in 2011 showed that where few enterprise-level trade unions were ready to accept the responsibility related to the derogatory role of collective agreements in entry into contracts, central trade unions have started to look positively at the derogatory role of collective agreements. *32 According to the same study, the central unions of employers see the role of a collective agreement as that of an agreement that permits the deviation from the protection arising from the ECA.
Section 2 of the ECA is formulated in a manner common to laws of many European countries where the principle of derogation is regulated by law. In the Czech Republic *33 , Italy *34 , Sweden *35 , Holland *36 , and Belgium *37 , enterprise-level trade unions have the right to make derogations from law in their collective agreements also if the derogation is less favourable for the employee, provided that such a possibility is provided for in the sector’s collective agreement. For instance, in Sweden *38 the law establishes maximum ratios of working time, and these are mandatory for partners where working time is agreed upon neither via collective agreements nor otherwise.
In Hungary, collective agreements may derogate from labour laws with regard to work and rest time, the law provides specific instructions and maximum ratios for this kind of derogation. *42 In Poland, derogation from the legislation is allowed only if it provides more beneficial terms for the employee. *43 The Latvian Labour Code does not provide for derogatory regulation through collective agreements. *44 Similarly to Estonia, Latvia displays labour relations that are regulated mainly by law, while the individual employment contract is regarded as an alternative to the regulation more than the collective agreement is.
Generally, EU member states have a principle that derogations from the law that would affect employees are within the purview of collective agreements. This is because collective agreements are considered more suitable for offsetting the impact of work conditions worse than those prescribed by law than are individual contracts. The objective is for there to be adequate regulation to provide sufficient security and the greatest possible flexibility.
Traditionally, most of the collective agreements in Estonia regulate work- and rest-time issues, since these conditions are highly dependent on the particular nature of the work and the applicable regulation is sometimes so detailed that it is not feasible to specify it via law.
Subsection 46 (2) of the ECA refers to the possibility of extending the period for working-time calculation (to one year at maximum) via a collective agreement in the fields of health care, welfare, agriculture, and tourism. This principle according to which working time is calculated for a period of up to one year, which entered into force on 1 July 2009, has already been adopted in collective agreements made in the field of health care. For example, West Tallinn Central Hospital has entered into a collective agreement in which the total calculation period agreed on for working time is as long as six months. *45 For all other fields of operation, the period for calculation of working time has been limited to four months.
Pursuant to §51 (1) of the ECA, an agreement by which the uninterrupted rest period left for an employee over a span of 24 hours is less than 11 hours is void unless the law provides otherwise. Pursuant to §51 (3) of the ECA, derogation (daily rest time that is less than 11 hours) from the terms of §51 (1) may be agreed upon only via a collective agreement. Special provisions in §51 (4) of the ECA state the principle that §51 (1) of the ECA does not apply to health-care and welfare workers. As §51 (1) of the ECA is not applicable in the health-care and welfare sectors, the requirement to conclude a collective agreement does not apply when one derogates from this provision for the length of the rest time. Regardless of the absence of such a delegation provision in the ECA, a rest-time period that is shorter than 11 hours is at present being agreed upon via collective agreements in the health-care sector. Given the importance of the issue, this is clearly justified. The collective agreement made in AS Põlva Haigla *49 states that the agreed working time of employees working to a shift list not exceed 12 hours and it is possible, by special arrangement, to agree that a shift shall be up to 24 hours long.
While considering the topic of making derogatory agreements under the ECA, one should also note that, in accordance with §50 (4) of the ECA, night-time work extending beyond eight hours, and up to 24 hours, may be agreed upon either in an individual employment contract or through a collective agreement. Subsection 51 (6) of the ECA also allows for the use of individual and collective agreements for apportioning daily rest time in a manner different from that prescribed by law (minimum blocks of six hours).
From examination of the regulation of working and rest time in the ECA, it is difficult to understand why the lawmaker decided upon establishing specific provisions to give such roles to the individual agreement and the collective agreement. No national agreement with the social partners is prescribed in Estonian law.
However, the specific provisions (allowing for derogations) on working-time regulation that are stated above are being implemented in various enterprise-level collective agreements. For instance, AS G4S has regulated in its collective agreement *50 , by employing a derogation that is permissible by law, the principles for night-time work, shift lengths, and stints of rest time, as well as the scope for implementation of these terms, justification, and special situations in terms of occupational safety and health. At the same time, it should be said that such derogatory agreements enabled by law have value only if, in addition to the flexibility provided by law, these collective agreements also stipulate measures to protect workers’ health and safety. This is a new area for collective agreements in Estonia, opened up by the adoption of the new regulation of the ECA, and this field of regulation in collective agreements will surely develop.
At any rate, one must support the trend toward regulating working- and rest-time issues in collective agreements for supplementation of individual contracts of employment and in addition to them. It must also be ensured that making of derogatory provisions is the result of carefully analysed decisions by those implementing them, looking at the entire package of work conditions and development in general that a single employee often cannot analyse when negotiating a contract. In the ECA’s current provisions, the chapter on working and rest time is very detailed in comparison with other chapters, and it is likely to become even more detailed if these issues are not delegated to collective agreements.
One such area, in the author’s opinion, in which the system of regulation could have continued, especially in view of the practice of current employment contracts, is on-call duty time and the remuneration for non-standard working time. Until the ECA entered into force, the terms and organisation of on-call duty work had to be agreed upon in collective agreements. However, §48 (1) of the ECA provides for a minimum wage for on-call duty work by law. While thus far, for instance, remuneration for on-duty work under collective agreements was given at a rate of 25–40% of the normal hourly rates, the minimum rate stated by §48 (1) of the ECA is 1/10 of the agreed fee. Collective agreements are also, in some respects, influenced by the fact that the ECA does not require the payment of additional fees for work done in late evening (from 18.00 to 22.00). As a result, several collective agreements now provide for payment of additional fees only for night-time work and work on public holidays. Therefore, the author’s opinion is that in the case of enforcement of these minimum guarantees, one should weigh whether to provide for the principle that the law is applicable unless the issue is regulated by a collective agreement. Such a change would contribute to better use of the resources available in the companies and sectors that enter into such agreements (the parties habit of addressing this issue in their collective agreements until the new labour law was adopted) as well as enhance guidance of the social partners toward regulation of minimum conditions that match the actual situation.
The ECA does not provide a significant role for collective agreements in key issues of labour relations that many countries’ law mandates to be regulated by collective agreements, such as terms for entering into fixed-term contracts in Italy *51 ; the maximum duration of fixed-term contracts and principles for extension in Germany *52 ; terms of notice for termination of employment contracts that are shorter than those prescribed by law in Germany *53 ; principles for prohibition of ordinary redundancy in Germany *54 ; and the redundancy procedure, benefits, and reinstatement principles in Finland according to §7 of Chapter 13 of the Finnish Employment Contracts Act. In Estonia, these areas are regulated mostly in general terms in the ECA.
Undoubtedly, this is partly because collective agreements are relatively uncommon in Estonia. However, for instance, lawmakers in Lithuania have not been influenced by the modest coverage of collective agreements (no more than 15% of the population *55 ) and the government still has given collective agreements a bigger role in regulating labour relations (see also item 5).
At the same time, many collective agreements have started to agree on important issues for social partners that are generally regulated in the ECA and that have been legally easier to define. The general wording of §38 of the ECA, which regulates continuation of the payment of wages for a reasonable period if there are obstacles to the work, requires that the provision for cases wherein personal factors render the worker unable to work be made more specific by the social partners. For instance, AS Stockmanni Kaubamaja has entered into a collective agreement *56 that has a specific provision for when such remuneration is maintained (consultation of a physician, illness of a family member, job interview during one’s term of notice, etc.) and for how long, if the employee needs to be away from the workplace. Other provisions address the procedure for applying; formulating; and, if necessary, proving such need. The collective agreement concluded in AS SEBE *57 has specified the necessary diligence in work (customer service for passengers, ticket sales rules, work in cases of accidents, etc.) that is considered in awarding of performance‑based pay. Section 16 of the ECA refers to the degree of diligence very generally.
Ensuring that extraordinary termination of the employment relationship is handled correctly is constantly an important issue for employers, and collective agreements deal with principles that enable one to implement this provision more accurately. This is the case with employment contracts concluded in AS Eesti Energia Narva Elektrijaamad *58 , which describe acts in connection with which such termination of the contract may be implemented in the relevant sector.
Moreover, for cases of violation of work responsibilities, collective agreements regulate the procedure of drawing up a warning and the validity of such a warning; examples are the collective agreements concluded in AS Eesti Energia, OÜ Eesti Energia Jaotusvõrk, and AS Eesti Energia Võrguehitus *59 . Subsection 88 (4) of the ECA mentions such a warning only in passing.
As a rule, Estonian collective agreements do not regulate those aspects of labour relations that are more complex legally and are only generally formulated in our ECA, such as those principles of proprietary liability that are regulated by collective agreements in Germany *60 and the right and causes of extraordinary termination of employment (handled in Italy by collective agreements *61 ). Under §75 of the ECA, the principles for calculation of proprietary damages, procedure for claiming damages, and the maximum degree of liability are regulated only via an agreement made between the employer and employee, although this may not be the best possible option from the viewpoint of the employee. Similarly, with reference to an agreement made between an employer and employee, §77 of the ECA prescribes a contractual penalty. For more detailed agreement on when the fine may be applied and its maximum rate, the law should have referred to regulation in collective agreements. In Estonia, collective agreements regulate, in the main, the notification in situations of termination of employment contracts (mostly for economic reasons), the pre-emptive right to maintain an employment relationship, terms for offering a different job, the employer’s obligation to provide the necessary training in cases of transfer of employees, the pre-emptive right to regain a job in the event of vacancies, etc. At the same time, in cases of extraordinary termination of employment, it is not yet common to describe significant causes and reasonable time from becoming aware of significant circumstances until termination of employment, etc. In view of the issue of termination from the perspective of the importance of industrial harmony, ensuring employees’ security, and prevention of breaches of work duties, it is reasonable to delegate the generally worded regulation in §§ 88 and 89 of the ECA to collective agreements. This is also important for better use of existing resources (practice of handling the issue via collective agreements).
The general principle is, naturally, that such collective agreements may not, in comparison with the law, affect the employee’s situation (except in cases allowed by law), according to §4 (2) of the CAA. Neither may collective agreements be in conflict with the meaning of the law and the general principles of contracts under the law of obligations.
Analysis of collective agreements shows that the development of the regulation of material work conditions in collective agreements unguided by law has been unsystematic and vastly different between individual fields of operation and from one company to the next.
It arises from the current practices, described above, that in cases of a social dialogue, as it is today in Estonia, employers accept to regulate with collective agreements mainly those terms that are also dealt by the law. This is shown additionally by a study of collective labour relations in 2011 *62 , wherein, as one reason for entering into a collective agreement, participants indicated the relevant reference in the law—e.g., delegation of working-time regulation.
In most EU member states, the role of collective agreements has changed since the 1980s. In a global economy, social partners and states have an interest not only in stability but also in being able to adapt and be sustainable. In other words, the traditional role of collective agreements—agreement on terms that are more beneficial than those demanded by the law—is no longer enough. In addition to a distributor of profit and an instrument augmenting the legislation, it is seen as an instrument that is regulative and provides flexibility. Depending on the situation, the role of collective agreements is to supersede, develop, or implement a law.
Thus the lawmakers in countries where coverage by collective agreements is high have entrusted to them the regulatory role of providing content for the provisions of the law as well as the option of deviating from the imperative legal provisions, even to the detriment of the employee. Of the countries studied for this article, there are some exceptions—for instance, I have noted that Lithuania has rather modest coverage by collective agreements but a Labour Code that assigns the essential role to collective agreements (inter alia, allowing deviation from the law), probably from a wish to develop the regulatory role of collective agreements with the aid of the legal framework.
Unlike many other EU members, Estonia has stayed true to the traditional role of collective agreements, which prevailed until the early 1990s. This is true for both the content of the agreements and the role of the agreement in deviation from the imperative provisions laid down in the ECA (incl. to the detriment of the employee).
Neither Estonian lawmakers nor the major social partners have accentuated the regulation of labour relations by collective agreements during the reform of labour-related legislation. The current practices related to collective agreements have mostly been disregarded. Next to laws, a central role has been given to individual employment contracts in the regulation of work conditions. The provisions for the regulation of working and rest time form an exception in this regard, in giving collective agreements somewhat more weight than individual contracts, and this has also been applied in collective agreements by social partners.
The new ECA allows collective agreements’ deviations from the imperative provisions of the law, to the detriment of the employee in just three cases.
Analysis of the regulation of collective agreements established after the reform of labour laws shows thatcollective agreements have started to agree on important issues for social partners that are generally regulated in the ECA and that have been legally easier to define.However, the development of the regulation of material work conditions in collective agreements unguided by law has been vastly different across areas of activity and company boundaries. The practices prevalent in Estonia have proved that the conclusion of collective agreements can be directly affected—through addition to the law of references to collective agreements—with a legal framework provided for resolution of the issues or by delegation of the agreement on the content of a matter provided for to collective agreements.
Today, the key to changing the role of the collective agreements lies in development of social dialogue and in the changing of the ECA. The current CAA does not directly restrict conclusion of agreements addressing the subjects, content, or validity of collective agreements. However, the current CAA needs to be made more detailed with respect to both the content of the agreement and parties to a non-typical contract.
The author of this article is, however, of the opinion that, as things stand in the Estonian labour market, where collective agreements are rarely entered into, it is necessary to guide the values of the parties to an employment relationship by making the law semi-mandatory, depending on whether or not the collective agreement applies to the parties in an employment relationship with respect to the given issue. This is true for the areas wherein certain detailed regulation is necessary for better protection of the employee (for instance, alternative terms and conditions for working and rest time, as well as extraordinary cancellation of a contract with a view to achieving maximally adequate regulation in terms of flexibility and security in the given economic and labour market conditions).
The providing of content to the generally worded norms of the ECA might also be—subject to agreement with the social partners—delegated to collective agreements, especially where it is difficult for the law to give detailed guidelines to the parties to an individual employment contract on account of differences in work life and where an individual employee might lack the contracting skills to ensure security. The relevant areas include the degree of diligence, principles governing obstruction of work, proprietary liability, terms of contractual penalty, and principles and procedure for cancelling a contract. The goal is to create a better balance among competitiveness, job creation, and maintenance of jobs, and to take into account the minimum rights of employees.
Contrary to the trend in countries with a tradition of negotiating to conclude more agreements at the level of the enterprise, in Estonia we should, in view of the eclectic nature of the regulation of work conditions, attach more importance to the role of sector-level collective agreements in order to generalise the regulation of labour relations better while enjoying the benefits of regulation at the level of the enterprise. Consequently, the author holds that use of the combination of law and collective agreements needs support from the law and that, instead of law, regulation via collective agreements should be encouraged in establishment of work conditions—to the detriment of the employee, if necessary. Such diversification of the regulation of work conditions would enable flexibility and security matching the current situation, by granting discretion in decision-making to the level of the employees of the enterprise instead of to individual employees for important aspects of the employment relationship.
*1 Töölepingu seadus. – RT I 2009, 5, 35; RT I, 25.5.2012, 26 (in Estonian). English text available via http://www.legaltext.ee/ (most recently accessed on 10.4.2012).
*2 Seletuskiri töölepingu seaduse juurde. Available via http://www.riigikogu.ee/ (most recently accessed on 10.4.2012) (in Estonian).
*3 Eesti Vabariigi töölepingu seadus (Republic of Estonia Employment Contracts Act). – RT 1992, 15/16, 241; 2007, 44, 316 (in Estonian). English text available via http://www.legaltext.ee/ (most recently accessed on 10.4.2012).
*4 Seletuskiri töölepingu seaduse juurde (see Note 2).
*5 Communication of the Commission on the common principles of flexicurity. Brussels: European Commission 2007. Available at http://eur-lex.europa.eulexUriServ/LexuriServ.do?uri=CELEX:52007DCO359:EN:NOT (most recently accessed on 10.4.2012).
*6 R. Eamets, T. Paas. Labour Market Flexibility, Flexicurity and Employment: Lessons of the Baltic States. Nova Science Publishers 2007, p. 198.
*7 Turvaline paindlikkus Eestis: Hetkeolukord ja arenguperspektiivid (Flexicurity in Estonia: Current Situation and Development Prospects). RAKE and Praxis 2010. Available via http://www.eakl.ee/ (most recently accessed on 10.4.2012) (in Estonian).
*8 Background information on industrial relations in companies in Estonia was used, with data from 2009. Available at http://www.eurofound.europa.eu/eiro/2012/country/estonia.htm (most recently accessed on 10.4.2012).
*9 Statistics from the collective agreements database. Available via http://klak.sm.ee/ (most recently accessed on 10.4.2012) (in Estonian).
*10 Statistics from the collective agreements database (see Note 9).
*11 From background information on industrial relations in companies in Estonia (see Note 8).
*12 Kollektiivlepingu seadus. – RT I 1993, 20, 353; 2009, 5, 35 (in Estonian). English text available via http://www.legaltext.ee/ (most recently accessed on 10.4.2012).
*13 R. Blanpain, T. Blanke, E. Rose. Collective Bargaining and Wages in Comparative Perspective: Germany, France, the Netherlands, Sweden and the United Kingdom. Hague: Kluwer Law International 2005, p. 91.
*14 T. Fashoyin. Trends and developments in employment relations and the world of work in developing countries. – The International Journal of Comparative Labour Law and Industrial Relations 2010/2, p. 133.
*15 S. Hayter. The Role of Collective Bargaining in the Global Economy: Negotiating for Social Justice. Geneva: International Labour Organization 2011, p. 8.
*16 The author analysed 50% of the enterprise-level collective agreements concluded in 2010–2011 in her possession (50 agreements out of 100). Collective agreements registered in the database of collective agreements (after removal of personal data therefrom) too were made available to the author for scientific purposes.
*17 Communication of the Commission on the common principles of flexicurity (see Note 5).
*18 J. Pichrt, M. Stefko. Labour Law in Czech Republic. Wolters Kluwer Law and Business 2010, p. 45.
*19 M. Weiss, M. Schmidt. Labour Law in Germany. Austin: Wolters Kluwer 2008, p. 47.
*20 The collective agreement, concluded in 2012, is available via http://www.etta.ee/ (most recently accessed on 10.4.2012) (in Estonian).
*21 Communication of the Commission on the common principles of flexicurity (see Note 5).
*22 Blanpain et al. (see Note 13), p. 24.
*24 Võrdse kohtlemise seadus. – RT I 2008, 56, 315; RT I, 10.2.2012, 1 (in Estonian). English text available via http://www.legaltext.ee/ (most recently accessed on 10.4.2012).
*25 T. Treu. Labour Law and Industrial Relations in Italy. Alphen aan den Rijn: Kluwer Law International 2007, pp. 42–43.
*26 In the possession of the article’s author. The company operates in the energy sector. The agreement was concluded in 2011.
*27 In the possession of the article’s author. The company operates in the communications sector. The agreement concluded in 2011.
*28 Paindlikud töövormid Eestis (Flexible Forms of Work in Estonia). Praxis 2011. Available at http.//www.pare.ee/files_www/Kristi_Nurmela.pdf (most recently accessed on 10.4.2012) (in Estonian). Data from 2009 were used.
*29 In the possession of the article’s author. The collective agreement was concluded for the public sector in 2011.
*30 K. Nevens. Home work, telework and the regulation of working time: A tale of (partially) similar regulatory needs, in spite of historically rooted conceptual divergence. – Journal of Comparative Labour Law and Industrial Relations 2010/2, p. 214.
*31 R. Blanpain. Labour Law in Belgium. Austin: Wolters Kluwer Law and Business 2010, p. 121.
*32 A study of collective labour relations in the private sector (Centar, 2011). Available at http://www.sm.ee/meie/uringud-ja-analüüsid/toovaldkond.html (most recently accessed on 10.4.2012) (in Estonian).
*33 Pichrt, Stefko (see Note 18), p. 241.
*34 Treu (see Note 25), p. 192.
*35 A. Adlercreutz, B. Nyström. Labour Law in Sweden. Austin: Wolters Law and Business 2010, p. 59.
*36 Blanpain et al. (see Note 13), p. 104.
*38 Adlercreutz, Nyström (see Note 35), p. 58.
*39 Finnish Employment Contracts Act (55/2001). English text available via http://www.finlex.fi/en/ (most recently accessed on 10.4.2012).
*40 R. Blanpain, W. Bromwich, O. Rymkevich, S. Spattini. The Modernization of Labour Law and Industrial Relations in a Comparative Perspective. The Hague: Wolters Kluwer Law and Business 2009, p. 361.
*41 Lithuanian Labour Code, 4.6.2002. English text available via http://www3.lrs.lt/dokpaieska/forma_lhtm (most recently accessed on 10.4.2012).
*42 Blanpain et al. (see Note 40), p. 344.
*43 M. Sewerynski. Collective Agreements and Individual Contracts of Employment. London: Kluwer Law International 2003, p. 193.
*44 I. Tare. Labour Law in Latvia. Austin: Wolters Kluwer Law and Business 2010, p. 48.
*45 In the possession of the article’s author. Concluded in 2010.
*46 Blanpain (see Note 31), p. 133.
*47 Adlercreutz, Nyström (see Note 35), p. 88.
*48 M.A. Olea, F. Rodrigues-Sanudo. Labour Law in Spain. Austin: Wolters Kluwer Law and Business 2010, p. 71.
*49 In the possession of the article’s author. Concluded in 2011. The company operates in the health-care sector.
*50 In the possession of the article’s author. Concluded in 2011. The company operates in the security sector.
*51 Treu (see Note 25), p. 40.
*52 Weiss, Schmidt (see Note 19), p. 55.
*55 Blanpain et al. (see Note 40), p. 361.
*56 In the possession of the article’s author. The company operates in commerce. The agreement was concluded in 2011.
*57 In the possession of the article’s author, it was concluded in 2011. The company operates in the transport sector.
*58 In the possession of the article’s author, the agreement was concluded in 2011. The company operates in the energy sector.
*59 In the possession of the article’s author, it was concluded in 2011. The company operates in the energy sector.
*60 Weiss, Schmidt (see Note 19), p. 187.
*61 Treu (see Note 25), p. 108.
*62 Study of collective labour relations in the private sector (see Note 32).


In re Hohorst, 150 U. S. 653 , distinguished from this case.
Southern Pacific Co. v. Denton, 146 U. S. 202 , and Mexican Central Railway v. Pinkney, 149 U. S. 194 , followed in holding that a statute of a state which makes an appearance in behalf of a defendant, although in terms limited to the purpose of objecting to the jurisdiction of the court, a waiver of immunity from jurisdiction by reason of nonresidence is not applicable, under Rev.Stat. § 914, to actions in a circuit court of the United States held within the state.
We have no doubt of our authority under the Act of February 25, 1889, to review the decision of the court below sustaining its jurisdiction over the case, and we have already held that the provision of the Texas statute which gives to a special appearance made to challenge the court's jurisdiction the force and effect of a general appearance, so as to confer jurisdiction over the person of the defendant, is not binding upon the federal courts in that state. Southern Pacific Railway v. Denton, 146 U. S. 202 ; Mexican Central Railway v. Pinkney, 149 U. S. 194 .
In Shaw v. Quincy Mining Company, 145 U. S. 444 , a citizen of Massachusetts sought to maintain a bill in equity in the Circuit Court for the Southern District of New York against the Quincy Mining Company, a corporation organized under the laws of Michigan, and having a usual place of business in the City of New York, and the question arose whether the court had jurisdiction over such a suit. It was held that it did not. In the opinion of the Court, it was said that the word "inhabitant" in the act of 1789 was apparently used not in any larger meaning than "citizen," but to avoid the incongruity of speaking of a citizen of anything less than a state, when the intention was to cover not only a district which included a whole state, but also two districts in one state.
In the Case of Hohorst, 150 U. S. 653 , decided at the present term, it was held that the clause in question, that no civil suit should be brought against any person in any other district than that whereof he was an inhabitant, was manifestly inapplicable to a suit brought by a citizen of one of the United States against an alien, and that the words of the provision evidently looked to those persons, and those persons only, who are inhabitants of some district within the United States.
This conclusion is rested upon the doctrine announced in Shaw v. Quincy Mining Co., 145 U. S. 444 , and Southern Pacific Co. v. Denton, 146 U. S. 202 , that a corporation incorporated in one state only and doing business in another state was not an inhabitant of the latter within the meaning of the Judiciary Acts, and liable to be sued in the circuit courts of the United States held therein, if objection is properly made.
The present case is clearly distinguishable from these authorities in two respects: first that the defendant corporation is a citizen of the State of Texas, in which it is sued, and second that the parties to the controversy are not citizens of different states of the union, as was the case in those decisions. In other words, Shaw v. Quincy Mining Co., 145 U. S. 444 , and Southern Pacific Co. v. Denton, 146 U. S. 202 , dealt with cases where the controversy was between citizens of different states, while the present case involves a controversy between an alien and a citizen, and presents the question whether the citizenship of the defendant corporation is coextensive with the line of its road, and the actual exercise of its franchise within the state of its creation, or is limited and restricted to the place where its chief office is located.
This construction thus placed upon these clauses of the act was recognized and reaffirmed in Shaw v. Quincy Mining Co., 145 U. S. 444 .
The Judiciary Act, in declaring that circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity between citizens of a state and foreign states, citizens, or subjects, when the matter in dispute exceeds, exclusive of interest and costs, the sum of $2,000, means, as I understand its language, that the circuit courts of the United States shall have the same jurisdiction as the state courts; otherwise, it could not be concurrent. Now the state court at El Paso would have had undoubted jurisdiction of the present suit, and although the United States circuit court, held at the same place, has concurrent (the same) jurisdiction over the subject matter and the parties, the result of the Court's opinion is to deny the jurisdiction of the federal court. 25 U. S. Early,@ 12 Wheat. 147, 25 U. S. 148 .
"where a corporation is created by the laws of a state, the legal presumption is that its members are citizens of the state in which alone the corporate body has a legal existence. "
In Shaw v. Quincy Mining Co., 145 U. S. 444 , MR. JUSTICE GRAY, speaking for the Court, said in effect that the word "inhabitant" in the act of 1887 was apparently used in no larger or different meaning than "citizen."


text:
G.R. No. 165014, July 31, 2013 - HEIRS OF ALEJANDRA DELFIN, NAMELY: LEOPOLDO DELFIN (DECEASED), REPRESENTED BY HIS SPOUSE, LUZ C. DELFIN, AND CHILDREN, LELANE C. DELFIN AND ANASTACIA C. DELFIN, MARCELITO DELFIN, FRANCISCO DELFIN, APOLLO DELFIN, ABRILES DELFIN, LYDIA D. DACULAN, OLIVIA D. CABALLERO, ALEJANDRO DELFIN, JULITO DELFIN, AND CANDIDO DELFIN, JR., Petitioners, v. AVELINA RABADON, PACIANO PANOGALING, HILARIA RABADON, PABLO BOQUILLA, CATALINA RABADON, PACIANO RABAYA, FE RABADON, GONZALO DABON, AND ROBERTO RABADON, Respondents.
HEIRS OF ALEJANDRA DELFIN, NAMELY: LEOPOLDO DELFIN (DECEASED), REPRESENTED BY HIS SPOUSE, LUZ C. DELFIN, AND CHILDREN, LELANE C. DELFIN AND ANASTACIA C. DELFIN, MARCELITO1 DELFIN, FRANCISCO2 DELFIN, APOLLO DELFIN, ABRILES DELFIN, LYDIA D. DACULAN, OLIVIA D. CABALLERO, ALEJANDRO DELFIN, JULITO DELFIN, AND CANDIDO DELFIN, JR., Petitioners, v. AVELINA RABADON, PACIANO PANOGALING,3 HILARIA RABADON, PABLO BOQUILLA, CATALINA RABADON, PACIANO RABAYA, FE RABADON, GONZALO DABON, AND ROBERTO RABADON, Respondents.
Assailed in this petition for review on certiorari4 are the Decision5 dated February 28, 2001 and Resolution6 dated August 2, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 57723 which reversed and set aside the Decision7 dated June 27, 1997 of the Regional Trial Court of Cebu City, Branch 58 (RTC) in Civil Case No. CEB-14801, ordering petitioners to surrender the ownership and possession of Lot No. 8217, a 4,452 square meter parcel of land situated in Inawayan, Pardo, Cebu City (subject property), in favor of respondents and to render an accounting of the fruits received.
On the other hand, the RTC observed that while it is undisputed that the subject property has been issued Decree No. 98992 and for which an original certificate of title was issued to Emiliana, respondents have not shown any efforts to locate the said title nor to reconstitute the same. Neither have they attempted to declare the subject property for taxation purposes nor have they shown any proof that they paid the realty taxes due thereon, thereby negating their claim of ownership.20 Moreover, the RTC pronounced that respondents were guilty of laches.21 Aggrieved, respondents elevated the matter on appeal.
Also, the CA observed that petitioners offered no credible explanation as to why the subject property was declared in the name of their predecessor-in-interest, Remegio, and that the tax declarations were only allowed on the supposition that the subject property was covered by TCT No. 20910 in the name of Remegio, which entry was, as earlier mentioned, shown to be erroneous.24 Anent the issue of prescription, the CA pronounced that petitioners were unable to prove that they have been in possession of the subject property since 1938. Neither are respondents guilty of laches since there is no evidence on record which would show that they omitted to assert their claim over the subject property.25 Respondents were, however, ordered to reimburse petitioners of the taxes paid by them during the period of their possession, including legal interest. Dissatisfied, petitioners moved for reconsideration which was denied in a Resolution26 dated August 2, 2004. Hence, the instant petition.
The essential issue in this case is whether or not respondents have the better right to the ownership and possession of the subject property.
At the outset, it bears noting that the Court may proceed to evaluate the evidence on record even on a Rule 45 petition for review in the event that the findings of the CA are contrary to that of the RTC,27 as in this case.
After such evaluation, the Court finds that the respondents have shown a better right to the ownership and possession of the subject property.
As may be gleaned from the records, the probative value of petitioners’ evidence, which consist of tax declarations and tax receipts, pales in comparison to that of respondents’ evidence which consists of a decree of ownership, i.e., Decree No. 98992, under the name of their predecessor-in-interest, Emiliana. While the actual copy of the said decree was lost, the existence of the said decree was actually proven by the LRA certification and the daybook entry. Likewise, the RTC itself observed that it is undisputable that the subject property has been issued Decree No. 98992, for which an original certificate of title was issued to Emiliana.28 It is an elemental rule that a decree of registration bars all claims and rights which arose or may have existed prior to the decree of registration. By the issuance of the decree, the land is bound and title thereto quieted, subject only to certain exceptions29 under the property registration decree.30 In the case of Ferrer-Lopez v. CA,31 the Court ruled that as against an array of proofs consisting of tax declarations and/or tax receipts which are not conclusive evidence of ownership nor proof of the area covered therein, an original certificate of title, which indicates true and legal ownership by the registered owners over the disputed premises, must prevail. Accordingly, respondents’ Decree No. 98992 for which an original certificate of title was issued should be accorded greater weight as against the tax declarations and tax receipts presented by petitioners in this case.
Besides, tax declarations and tax receipts may only become the basis of a claim for ownership when they are coupled with proof of actual possession of the property.32 In this case, records are bereft of any showing that petitioners, or any of their predecessors-in-interest, have been in actual possession of the subject property prior to 1989 as they claim. The tax declarations and tax receipts are insufficient to prove their proffered theory that their predecessor-in-interest, Remegio, was the lawful possessor and owner of the foregoing property even before the last World War. In fact, petitioners altogether failed to prove the legitimacy of Remegio’s possession and ownership since they failed to present the pertinent deed of sale or any other evidence of the latter’s title. On the contrary, aside from the LRA certification and daybook entry which prove the existence of Decree No. 98992, respondents’ possession of the subject property prior to petitioners’ entry in 1989 was attested to by one Marcelina Tabora33 who, as the CA notes, appears to be an unbiased witness.34 All told, by sheer preponderance of evidence, respondents have shown a better right to the ownership and possession of the subject property and hence, must be awarded the same.
As to the issue of laches, suffice it to state that petitioners were not able to adduce any sufficient evidence to demonstrate that respondents unduly slept on their rights for an unreasonable length of time. Quite the contrary, records reveal that respondents and their predecessors-in-interest have been in possession of the subject property since the 1950’s and that they filed their complaint on October 19, 1993, which is only four years removed from the time petitioners entered the property in 1989.35 As such, laches does not exist.
In view of the pronouncements made herein, the Court deems it unnecessary to delve on the other ancillary issues in this case.
WHEREFORE, the petition is DENIED. Accordingly, the Decision dated February 28, 2001 and Resolution dated August 2, 2004 of the Court of Appeals in CA-G.R. CV No. 57723 are hereby AFFIRMED.
1 “Marlito” or “Manuelito” in some parts of the records.
2 “Francisca” in some parts of the records.
3 “Panugaling” in some parts of the records.
5 Id. at 41-48. Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Romeo A. Brawner and Juan Q. Enriquez, Jr., concurring.
6 Id. at 49-51. Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Edgardo P. Cruz and Juan Q. Enriquez, Jr., concurring.
7 Id. at 25-40. Penned by Judge Jose P. Serrano, Jr.
13 Id. at 25 and 28.
14 Id. at 31-32. During trial, respondents presented, as their witnesses, Jovito and Celestino Navares who both testified, inter alia, that Remegio bought the subject property and a certificate of title was issued in the latter’s favor.
16 Id. at 26 and 31-32.
19 Id. at 39 and 45.
27 See Decaleng v. Bishop of the Missionary District of the Philippine Islands of Protestant Episcopal Church in the United States of America, G.R. No. 171209, June 27, 2012, 675 SCRA 145, 160-161.
29 See Section 39 of Act 496, now Section 44 of Presidential Decree No. (PD) 1529, as cited in Cureg v. Intermediate Appellate Court (4th Civil Cases Div.), 258 Phil. 104. See also Section 31of PD 1529.
30Cureg v. Intermediate Appellate Court, id. at 111.
31 234 Phil. 388, 396-397 (1987), cited in Cureg v. Intermediate Appellate Court, id. at 110-111.
32 See Cequeña v. Bolante, G.R. No. 137944, April 6, 2000, 330 SCRA 216, 226-227.
33Rollo, p. 29-30. During trial, Marcelina Tabora testified, inter alia, that: (a) during the lifetime of Emiliana, she was the one who bought the fruits of the coconut trees on the subject property; (b) since the time she was buying the products of the subject property, Emiliana was in possession of the same; (c) after Emiliana’s death, the latter was succeeded by Genaro Rabadon and later his children, who sold to her the fruits until 1985; and (d) during the time when she was gathering the fruits, no one ever objected to what she was doing.

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