text:
Describe the Administrative Code of 1987.
Held: The Code is a general law and “incorporates in a unified document the major structural, functional and procedural principles of governance (Third Whereas Clause, Administrative Code of 1987) and “embodies changes in administrative structures and procedures designed to serve the people.” (Fourth Whereas Clause, Administrative Code of 1987) The Code is divided into seven (7) books. These books contain provisions on the organization, powers and general administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasijudicial powers. The Code covers both the internal administration, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) What is Administrative Power? Held: Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) What is an Administrative Order? Held: An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) What is the Government of the Republic of the Philippines? Ans.: The Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. (Sec. 2, Introductory Provisions, Executive Order No. 292) What is an Agency of the Government? Ans.: Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. (Sec. 2, Introductory Provisions, Executive Order No. 292) What is a Department?
95. 2. which stands to be benefited if the land covered by TCT No. or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions. Nor may it raise the defense of imprescriptibility. be exempted from payment of all duties. 292) When is a Government-Owned or Controlled Corporation deemed to be performing proprietary function? When is it deemed to be performing governmental function? Held: Government-owned or controlled corporations may perform governmental or proprietary functions or both. No. If the purpose is to obtain special corporate benefits or earn pecuniary profit. etc. not the Government. has it been “impliedly converted to a private corporation”? Held: The test to determine whether a corporation is government owned or controlled. X x x With the transfer of Camp Wallace to the BCDA. Introductory Provisions. the same no longer holds true today. Its charter. and its employees are under the jurisdiction of the Civil Service Commission. be exempted from payment of all duties. or private in nature is simple. the same being applicable only in cases where the government is a party in interest. If it is in the interest of health. Alcala. taxes. Republic Act No. x x x (Sec. fees and other charges. N-361. was amended to vest in it the authority to secure loans. it is the Bases Conversion and Development Authority. Is it created by its own charter for the exercise of a public function. Executive Order No. x x x. . 7227. the same may not be invoked by the government in this case since it is no longer interested in the subject matter. the government no longer has a right or interest to protect. NLRC. fees and other charges. 1999. En Banc [Purisima]) The Philippine National Red Cross (PNRC) is a government-owned and controlled corporation with an original charter under R. [Pardo]) When may the Government not validly invoke the rule that prescription does not run against the State? Illustrative Case. While Camp Wallace may have belonged to the government at the time Rafael Galvez’s title was ordered cancelled in Land Registration Case No. created the Bases Conversion and Development Authority.where applicable as in the case of stock corporations. as amended. The PNRC was not “impliedly converted to a private corporation” simply because its charter was amended to vest in it the authority to secure loans. safety and for the advancement of public good and welfare. taxes. No. Held: While it is true that prescription does not run against the State. 425. Aug. (Blaquera v. the Republic is not a real party in interest and it may not institute the instant action. etc. 6. With the amendnt of its charter.A. however. the function is governmental. 1st Div. depending on the purpose for which they have been created. affecting the public in general. the function is proprietary. Being the owner of the areas covered by Camp Wallace. Powers classified as “proprietary” are those intended for private advantage and benefit. otherwise known as the Base Conversion and Development Act of 1992. Sept. 129049. 11. Consequently. 295 SCRA 366. to the extent of at least fifty-one (51) per cent of its capital stock. 1998. (Camporedondo v. G. T-5710 issued in the name of petitioner is cancelled.R.
and the country’s goal for enhancement. We may presume that. not the Republic. in particular. It is consequently asserted that the Republic remains to be the real party in interest and the Conversion Authority merely its agent. yet it is certain that the functions performed by the BCDA are basically proprietary in nature. Marcha Transport Co. the Court has ruled that these entities. Inc. whose title to the disputed property it continues to recognize. Having the capacity to sue or be sued. particularly. not supplant. the Republic of the Philippines. v. particularly of Central Luzon and. once collected by the Republic of the . It is contended that the transfer of these military reservations to the Conversion Authority does not amount to an abdication on the part of the Republic of its interests. We may expect the that the said rentals.Nonetheless. It may thus be said that the BCDA is not a mere agency of the Government but a corporate body performing proprietary functions. the country’s goal for enhancement (Section 2. and yet. X x x It may not be amiss to state at this point that the functions of government have been classified into governmental or constituent and proprietary or ministrant. Republic Act No. In E. directly exercising the commission it had earlier conferred on the latter as its agent. The Republic of the Philippines had simply sought to assist.. acted as principal of the Philippine Ports Authority. it has been posited that the transfer of military reservations and their extensions to the BCDA is basically for the purpose of accelerating the sound and balanced conversion of these military reservations into alternative productive uses and to enhance the benefits to be derived from such property as a measure of promoting the economic and social development. E. by doing so. considering that by its voluntary act it had transferred the land in question to the Philippine Ports Authority effective July 11. may be attributable to the operation of the BCDA. the Court ruled: It can be said that in suing for the recovery of the rentals. One having no right or interest to protect cannot invoke the jurisdiction of the court as a party plaintiff in an action. NAWASA and the NIA. GSIS. IAC is cited as authority that the Republic is the proper party to sue for the recovery of possession of property which at the time of the installation of the suit was no longer held by the national government body but by the Philippine Ports Authrotiy. the promotion of the economic and social development of Central Luzon. it should thus be the BCDA which may file an action to cancel petitioner’s title. in general.B. We. however. x x x However. the Republic of the Philippines did not intend to retain the said rentals for its own use. must not lose sight of the fact that the BCDA is an entity invested with a personality separate and distinct from the government. The promotion of economic and social development of Central Luzon. Marcha. the SSS. the Philippine Ports Authority. to count a few. A suit may be dismissed if the plaintiff or the defendant is not a real party in interest. are not government-function corporations invested with governmental attributes. in general. the former being the real party in interest. 7227). Other corporations have been created by government to act as its agents for the realization of its programs. 1974.B. do not make the BCDA equivalent to the Government. but simply a recognition of the need to create a body corporate which will act as its agent for the realization of its program. While public benefit and public welfare. although performing functions aimed at promoting public interest and public welfare.
a course of action proscribed by said case. on the pretext that the Government is the real party in interest against whom prescription does not run. (Shipside Incorporated v. To dismiss the complaint in E. shall be turned over by it to the Philippine Ports Authority conformably to the purposes of P. Such is not the case here since to allow the government to sue herein enables it to raise the issue of imprescriptibility.B. considering that the Board of Communications was the successor-in-interest of the PSC. It assumed the functions formerly assigned to the Board of Communications and the Communications Control Bureau. The rule that prescription does not run against the State does not apply to corporations or artificial bodies created by the State for special purposes. telephone and telegraph systems. If only not to do violence and to give some measure of respect to the Torrens System. its grantees. Marcha is. said corporations having been created merely as agents for the realization of government programs. 546 x x x. created under Commonwealth Act No. 20. No. 857. Court of Appeals. causes of action which have already prescribed. E. It should also be noted that petitioner is unquestionably a buyer in good faith and for value. Under Executive Order No. Feb. Held: The NTC was created pursuant to Executive Order No. as amended. however. a claim which is not available to the BCDA. to recognize the Government as a proper party to sue in this case would set a bad precedent as it would allow the Republic to prosecute. In the regulatory communications industry. which were both abolished under the said Executive Order. although artificial bodies of its own creation. Such power includes the authority to determine the areas of operations of applicants for . [Melo]) Discuss the nature and functions of the National Telecommunications Commission (NTC). petitioner must be afforded some measure of protection.B. otherwise known as the Public Service Act. a claim which cannot be raised by the BCDA. 146. it being said that when the title of the Republic has been divested. the Court considered the Republic a proper party to sue since the claims of the Republic and the Philippine Ports Authority against the petitioner therein were the same. the NTC has the sole authority to issue Certificates of Public Convenience and Necessity (CPCN) for the installation. issued in April 1987. or 5 years after the issuance of the original certificate of title. Marcha would have brought needless delay in the settlement of the matter since the PPA would have to refile the case on the same claim already litigated upon. operation. Marcha.D. Previously. the Government not only assists the BCDA. and maintenance of communications facilities and services. as a third transferee. not on all fours with the case at bar.Philippines. are in the same category as ordinary persons. By raising the claim of imprescriptibility. 125-A. it even supplants the latter. 3rd Div. and analyze its powers and authority as well as the laws. In the former. rules and regulations that govern its existence and operations.B. radio communications systems. as it did in E. the NTC’s function were merely those of the defunct Public Service Commission (PSC). having acquired the property in 1963. 352 SCRA 334. on behalf of government-owned or controlled corporations. Moreover. the NTC became an attached agency of the Department of Transportation and Communications. 2001.
issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation. Section 16[a]) The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act x x x. 1993 is of no moment. (2) The records officer of the agency. 1993. however.. – (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. the NTC applied Rule 15. 1st Div. through the Secretary of the Commission. Section 16 of the Public Service Act authorizes the then PSC. to issue Certificates of Public Convenience for the operation of public services within the Philippines “whenever the Commission finds that the operation of the public service proposed and the authorization to do business will promote the public interests in a proper and suitable manner. upon notice and hearing. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3.” (Commonwealth Act No. These Revised Rules deleted the phrase “on its own initiative”. accordingly. the relief prayed for. without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority asked for. Section 3 of its 1978 Rules of Practice and Procedure.telecommunications services. Specifically. [Ynares-Santiago]) Is the filing of the administrative rules and regulations with the UP Law Center the operative act that gives the rules force and effect? Held: In granting Bayantel the provisional authority to operate a CMTS.. Respondent Extelcom. the NTC has been applying the 1978 Rules. a provisional authority may be issued only upon filing of the proper motion before the Commission. or his equivalent functionary. together with the affidavits and supporting documents attached thereto. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons. 3. (Republic v. 373 SCRA 316. Section 3 thereof merely states: Filing. Inc. 146. shall carry out the requirements of this section under pain of disciplinary action. coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1987 Rules. 2002. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. based on the pleading. Provisional Relief. the NTC. . which provides: Sec. Chapter 2. contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on February 3. clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. Book VII. complaint or petition or at any stage thereafter. 15. the Board may grant on motion of the pleader or on its own initiative. Express Telecommunication Co. Jan. In answer to this argument. – Upon the filing of an application. The absence of publication.
directly conferred by the Constitution. under which the respondents filed their applications for importations. in Tanada v. 1989. regulating only the personnel of the administrative agency and not the public. The original Administrative Order issued on August 30. i. Book VII.e. shall be published as a condition for their effectivity. X x x” The fact that the amendments to Administrative Order No. Section 7). which reads: “Article 2. was not published in the Official Gazette or in a newspaper of general circulation. until it is published. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines). which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. is invalid within the context of Article 2 of Civil Code. does not cure the defect related to the effectivity of the Administrative Order. The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President. This Court. that is. at present. Congress. Tuvera stated. and published by the UP Law Center in the National Administrative Register. we held: This does not imply. . legally. and to other persons at a price sufficient to cover publication and mailing or distribution costs (Administrative Code of 1987. Interpretative regulations and those merely internal in nature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative power or. P. in relation to LOI 444 and EO 133. that the subject Administrative Order is a valid exercise of such quasilegislative power. all appellate courts. We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. the National Library. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. since its purpose is to enforce and implement an existing law pursuant to a valid delegation. including those of local application and private laws. thus: “We hold therefore that all statutes. however. unless it is otherwise provided. 1071. In a similar case.D. Chapter 2.” The Administrative Order under consideration is one of those issuances which should be published for its effectivity. The questioned Administrative Order.. SOCPEC 89-08-01 were filed with.(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection. other public offices or agencies as the Congress may select. need not be published.
Hence.R. Section 1). as follows: “We hold therefore that all statutes. Jan. Inc. The only exception are interpretative regulations. This is explicit from Executive Order No. shall be published as a condition for their effectivity. (Republic v. as explicitly mentioned in the case of Tanada v. those merely internal in nature. at present. or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties (PHILSA International Placement & Services Corp.. 200. including those of local application and private laws. G. rules or regulations can take effect. The Rules of Practice and Procedure of the NTC. Tuvera is clear and categorical. therefore. which implements Section 29 of the Public Service Act. is void for lack of publication. April 4. . Tuvera. Tuvera. fall squarely within the scope of these laws. unless it is otherwise provided (E. 15. v. 2002. 200. it is the 1978 Rules that govern. directly conferred by the Constitution. which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. 373 SCRA 316. 356 SCRA 174). Series of 1983. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. and which states that: Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines. which repealed Article 2 of the Civil Code. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or. II. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation.. the Court held. 1st Div. that it cannot be held liable for illegal exaction as POEA Memorandum Circular No. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation (Section 20 thereof). There is merit in the argument. which enumerated the allowable fees which may be collected from applicants. In the absence of such publication. 2001.O. 103144. Express Telecommunication Co. No. Our pronouncement in Tanada v. the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. In Tanada v. publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes.Thus. [Ynares-Santiago]) May a person be held liable for violation of an administrative regulation which was not published? Held: Petitioner insists. Secretary of Labor. however.
2001. Neither is publication required of the so-called letter of instructions issued by the administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. there is no merit in this argument. POEA Memorandum Circular No. since its purpose is to enforce and implement an existing law pursuant to a valid delegation. In all these cited cases. Series of 1983 must likewise be declared ineffective as the same was never published or filed with the National Administrative Register. The said circular was apparently issued in compliance with the provisions of Article 32 of the Labor Code x x x.. the administrative issuances questioned therein were uniformly struck down as they were not published or filed with the National Administrative Register as required by the Administrative Code of 1987. 3rd Div. 2. (Philsa International Placement and Services Corporation v. [Gonzaga-Reyes]) Does the publication requirement apply as well to administrative regulations addressed only to a specific group and not to the general public? Held: The Office of the Solicitor General likewise argues that the questioned administrative circular is not among those requiring publication contemplated by Tanada v. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the People’s Republic of China. . c) Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hong Kong. Again. need not be published. the same is ineffective and may not be enforced. d) Administrative Order No. Series of 1983 provides for the applicable schedule of placement and documentation fees for private employment agencies or authority holders. Series of 1983 has not as yet been published or filed with the National Administrative Register. and e) Corporate Compensation Circular No. Considering that POEA Administrative Circular No. medical clinics and laboratories. April 4. the maximum amount which may be collected from prospective Filipino overseas workers is P2.00. b) Letter of Instruction No. 2. regulating only the personnel of the administrative agency and the public. 2. It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its effectivity. Secretary of Labor and Employment.” Applying this doctrine.Interpretative regulations and those merely internal in nature. that is. 416 ordering the suspension of payments due and payable by distressed copper mining companies to the national government. Tuvera as it is addressed only to a specific group of persons and not to the general public. Under the said Order. POEA Memorandum Circular No. 356 SCRA 174.500. we have previously declared as having no force and effect the following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee regarding the accreditation of hospitals.
The only exceptions are interpretative regulations. In the case of Phil. Series of 1983 has not been shown to fall under any of these exceptions. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. who were also the subordinates of the Commissioner of the Bureau of Customs. 2001. the said circulars may not be enforced or implemented. In this regard. Using this as our premise. 3rd Div. the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a particular class of persons. namely private employment agencies or authority holders. the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appropriations made by law for each fiscal year. namely those dealing with instructions from an administrative superior to a subordinate regarding the performance of their duties. petitioner should be absolved from the three (3) counts of exaction as POEA Administrative Circular No.” however. Administrative Circular No. Association of Service Exporters v. 356 SCRA 174. 2. Jancom Environmental Corporation that “the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract. or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. Tuvera. Our pronouncement in Tanada v. [Gonzaga-Reyes]) May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project? Held: Enshrined in the 1987 Philippine Constitution is the mandate that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law. namely Philippine and Hong Kong agencies engaged in the recruitment of workers for Hong Kong.. upon notice of the award to the bidder. does not take it away from the ambit of our ruling in Tanada v. X x x To summarize. Secretary of Labor and Employment. While we held in Metropolitan Manila Development Authority v. April 4. It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. Commissioner of Customs is misplaced. (Philsa International Placement and Services Corporation v. the said Memorandum Orders clearly fall under one of the exceptions to the publication requirement. and still the Court ruled therein that. for lack of proper publication.” (Sec. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract. the customs collectors. Torres. 2. As such. such statement would be inconsequential in a government where the acceptance . Tuvera is clear and categorical. those merely internal in nature.The fact that the said circular is addressed only to a specified group. 29. Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. Article VI of the 1987 Constitution) Thus. a circumstance which does not obtain in the case at bench. the administrative circulars questioned therein were addressed to an even smaller group. the Solicitor General’s reliance on the case of Yaokasin v. in the execution of government contracts. we cannot accede to PHOTOKINA’s contention that there is already a perfected contract. In the said case.
In the implementation of multi-year projects. There is no way that the COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project. Corollarily.2 Billion Pesos is unacceptable.) Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of P6. This being the case.the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1. under Section 33 of R. within the certified available funds. the issuance of identification cards for only 1.” .A. p.).2 Billion and. This is a dangerous precedent. supra. the project failed “to sell” with the Department of Budget and Management. the amount appropriated is insufficient to cover the cost of the entire VRIS Project. However. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements.e. the same covers only Phase I of the VRIS Project. i. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made. x x x While the contract price under the draft contract is only P1. 2000. the BAC should have rejected the bid for being excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law.”(Implementing Rules and Regulations [IRR] for Executive Order No. Should Congress fail to appropriate the amount necessary for the completion of the entire project.. Notwithstanding the issuance of the multiyear Obligational Authority. Thus. . 1018. The BAC shall rate a bid “passed” only if it complies with all the requirements and the submitted price does not exceed the approved budget for the contract. shall in no case exceed the amount programmed for implementation during said calendar year. Contracting Multi-Year Projects. 262.000 voters in specified areas. the same is null and void.000. declined the COMELEC’s request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project for lack of legal basis. no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. Clearly. Even the draft contract submitted by Commissioner Sadain that provides for a contract price in the amount of P1. no agency shall enter into a multi-year contract without a multi-year obligational authority. FY 2000. supra. it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefinite period of time. there seems to be an oversight of the legal requirements as early as the bidding stage. Secretary Benjamin Diokno. Not only is such arrangement disallowed by our budgetary laws and practices. No. the implementation of the VRIS Project will be “segmented” or “chopped” into several phases. under Republic Act No. per his letter of December 1. In the case at bar. thus: “SECTION 33.referred to is yet to meet certain conditions.588 Billion Pesos. the obligation to be incurred in any given calendar year. In effect. what good will the accomplished Phase I serve? As expected. 8760. thus. 8760 (General Appropriations Act.2 Billion Pesos was available.
the contract. we rule that PHOTOKINA. G. Since PHOTOKINA’s bid is beyond the amount appropriated by Congress for the VRIS Project. propriety and wisdom of the contract they entered into. the constitutional mandate cited above constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the people. In fine. No. they should be the first judges of the legality.Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Luisa Quijano-Padilla. Definitely. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action. En Banc [Sandoval-Gutierrez]) Does the Commission on Human Rights have the power to adjudicate? Held: In its Order x x x denying petitioners’ motion to dismiss. assumes personal liability thereunder.O. G. has not heretofore been shared by this Court. as expressly declared by law. 2002. and “the officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties. It would be as if the contract in such case were a private one. Luisa Quijano-Padilla. The law itself affords him the remedy. 151992. whereupon. No. Prudence dictated them not to enter into a contract not backed up by sufficient appropriation and available funds. While this is not the proceeding to determine where the culpability lies. void ab initio? Held: Of course. we are not saying that the party who contracts with the government has no other recourse in law. the Court x x x has observed that it is “only the first of the enumerated powers and functions . to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. 18. however. he binds himself. This view. Otherwise stated. 2002. and thus.” So when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority. Judge Ma. 18. (Commission on Elections v. therefore. Judge Ma. the Government is not bound under the contract. and hence. Sept. is inexistent and void ab initio (Article 1409 of the Civil Code of the Philippines). x x x Verily. In Carino v. (Commission on Elections v. Section 48 of E. Commission on Human Rights. however. No.R. the proposed contract is unenforceable as to the Government. Sept. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void.R. This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency. In the exercise of their contracting prerogative. En Banc [Sandoval-Gutierrez]) What is the remedy available to a party who contracts with the government contrary to the requirements of the law and. though the winning bidder. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. cannot be validated either by lapse of time or ratification. as if it had never been entered into. the proposed contract is not binding upon the COMELEC and is considered void x x x. 151992. cannot compel the COMELEC to formalize the contract.
229 SCRA 117. 1994. ‘Jurisdiction is conferred only by the Constitution or by law. En Banc [Vitug. Jan. the ‘preventive measures and legal aid services’ mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from the proper courts on behalf of the victims of human rights violations. and for no other purpose. (Simon. subject to such appeals or modes of review as may be provided by law. 229 SCRA 117. properly speaking.]) Does the Commission on Human Rights have jurisdiction to issue TRO or writ of preliminary injunction? Held: In Export Processing Zone Authority v. its findings and recommendations to any appropriate agency of government. To be considered such. It is available only in a pending principal action. the Court x x x explained: “The constitutional provision directing the CHR to ‘provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection’ may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for. v. A writ of preliminary injunction is an ancillary remedy. for the preservation or protection of the rights and interest of a party thereto.. Not being a court of justice.” “Evidently. (Simon. i. 5. the Commission does not have.]) . The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function. 1994. or duplicate much less take over the functions of the latter. x x x. for appropriate action. Jr. 134-135. En Banc [Vitug. or even a quasi-judicial agency or official. Commission on Human Rights. the Constitution would have expressly said so. 5.e.” but that resemblance can in no way be synonymous to the adjudicatory power itself. the CHR itself has no jurisdiction to issue the writ.’ It is never derived by implication. Jan. receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. finally and definitively. 125. if that were the intention. This function. to repeat. The Court explained: “x x x *T+he Commission on Human Rights x x x was not meant by the fundamental law to be another court or quasi-judicial agency in this country. Commission on Human Rights. J. v. Jr. Commission on Human Rights. “The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate. and cannot be likened to the judicial function of a court of justice. for a writ of preliminary injunction may only be issued ‘by the judge of any court in which the action is pending *within his district+. or by a Justice of the Court of Appeals. But fact finding is not adjudication. or of the Supreme Court.that bears any resemblance to adjudication of adjudgment.” The Commission does have legal standing to indorse. the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively. J.
Jan. however. To exemplify. is not investigatorial in character but prescinds from an adjudicative power that it does not possess. x x x (Simon. justifies non-observance of procedural due process. the Commission also has direct control and supervision over all personnel involved in the conduct of election. or is conferred upon an officer other than a judicial officer. Sandoval v. It behooves the Commission to hear both parties to determine the veracity of their allegations and to decide whether the alleged error is a manifest error. order or decision. but does not involve the exercise of functions of a judge.]) Discuss the Doctrine of Primary Jurisdiction (or Prior Resort). . No. Hence. the resolution of this issue calls for the exercise by the COMELEC of its quasi-judicial power. and recommend to the President the removal of or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive. the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body. 5. 26. acting as quasi-judicial tribunal. and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court. or does it involve the exercise of the COMELEC’s quasi-judicial function? Held: Taking cognizance of private respondent’s petitions for annulment of petitioner’s proclamation. or who unduly withhold relevant information. so that it is of judicial nature or character. and the like. orderly. and cite for contempt for violations thereof in accordance with the Rules of Court. in pursuing its investigative work. cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. COMELEC was not merely performing an administrative function. The COMELEC therefore.” Accordingly. it is deemed quasi-judicial. Jan. When may it be validly exercised. 134. The “order to desist” (a semantic interplay for a restraining order) in the instance before us. therefore. its power “to cite or hold any person in direct or indirect contempt. accredit citizen’s arms of the Commission. Jr. En Banc [Vitug. 229 SCRA 117. register political parties. peaceful and credible elections. conduct registration of voters. (Federico S.R. revise and reverse the actions of the board of canvassers and.Does the petition for annulment of proclamation of a candidate merely involve the exercise by the COMELEC of its administrative power to review.” That power to cite for contempt. The administrative powers of the COMELEC include the power to determine the number and location of polling places. appoint election officials and inspectors. the CHR is constitutionally authorized to “adopt its operational guidelines and rules of procedure. however. the CHR acted within its authority in providing in its revised rules. organizations or coalition. prosecute election offenses. should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. It has been said that where a power rests in judgment or discretion. v. 133842. 2000 [Puno]) Discuss the contempt power of the Commission on Human Rights (CHR). or who decline to honor summons. In addition. the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the questioned certificate of canvass requires the COMELEC to act as an arbiter. Commission on Human Rights. COMELEC. J. Held: On its contempt powers. G. deputize law enforcement agencies and governmental instrumentalities to ensure free. 1994. However. honest.
Hence. This doctrine is disregarded: when there is a violation of due process. experience and services of the administrative tribunal to determine technical and intricate matters of fact. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. and comes into play whenever enforcement of the claim requires the resolution of issues which. [Panganiban]) Discuss the Doctrine of Exhaustion of Administrative Remedies. Accordingly. CA. when there is irreparable injury. for one thing. availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons.Held: Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal. it is a pre-condition that he should have availed of all the means of administrative processes afforded him. 9. 280 SCRA 297. it has been the jurisprudential trend to apply this doctrine to cases involving matters that demand the special competence of administrative agencies even if the question involved is also judicial in character. 3rd Div. especially where the question demands the exercise of sound administrative discretion requiring the special knowledge.” In cases where the doctrine of primary jurisdiction is clearly applicable. the judicial process is suspended pending referral of such issues to the administrative body for its view. in such case. the jurisdiction over which is lodged with an administrative body of special competence. What are the exceptions thereto? Held: 1. absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. It applies “where a claim is originally cognizable in the courts. In recent years. 1992. the court cannot arrogate unto itself the authority to resolve a controversy. (Villaflor v. under a regulatory scheme. . if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the court’s judicial power can be sought. The premature invocation of court’s jurisdiction is fatal to one’s cause of action. have been placed within the special competence of an administrative body. Before a party is allowed to seek the intervention of the court. when the issue involved is purely a legal question. when there is estoppel on the part of the administrative agency concerned. Oct. when the administrative action is patently illegal amounting to lack or excess of jurisdiction.
speedy and adequate remedy. QUASIlegislative power only involves the discretion to determine how the law shall be enforced. LEGISLATIVE power involves the discretion to determine what the law shall be. 2. 266 SCRA 167 ) 2. i. when to require exhaustion of administrative remedies would be unreasonable. . [Davide]) POLITICAL LAW REVIEWER ADMINISTRATIVE LAW Powers of Administrative Agencies 1. (Paat v. it will have nothing to do but to enforce it. when it would amount to a nullification of a claim. COMPLETENESS test. Distinctions between Quasi-legislative power and legislative power 1. Determinative powers (Note: Senator Neptali Gonzales calls them incidental powers) Definition of “Quasi-legislative power” It is the authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy. when the rule does not provide a plain. CA. QUASI-legislative power CAN be delegated.when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter. 1997. It only renders the action premature. Quasi-judicial power/Power of adjudication 3. Quasi-legislative power / Power of subordinate legislation 2. Tests of Delegation (applies to the power to promulgate administrative regulations ) 1. 3rd Div. claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court. (Carale v. 269 SCRA 132. LEGISLATIVE power CANNOT be delegated. Abarintos. March 3. and when there are circumstances indicating the urgency of judicial intervention.e. Non-exhaustion of administrative remedies is not jurisdictional. when the subject matter is a private land in land case proceeding. This means that the law must be complete in all its terms and conditions when it leaves the legislature so that when it reaches the delegate..
summary destraint. which is the enforcement of the law. Ex.DIRECTING powers Those that involve the corrective powers of public utility commissions. Determinative Powers 1. classification and fact finding 3. Usually without notice and hearing. Power to appoint a receiver. Ex. and awards under workmen’s compensation laws. consider and make proper application of the rules of equity. SUFFICIENT STANDARD test.2. The law must offer a sufficient standard to specify the limits of the delegate’s authority. announce the legislative policy and specify the conditions under which it is to be implemented. levy of property of delinquent tax payers 5. EQUITABLE powers Those that pertain to the power to determine the law upon a particular state of facts. reparations under public utility laws. or authority to relieve from an affirmative duty. and powers of abstract determination such as definition-valuation. Issuance of licenses to engage in a particular business. 4. and must. Ex. 2. The exercise of this power is only incidental to the main function of administrative authorities. powers of assessment under the revenue laws. SUMMARY powers Those that apply compulsion or force against person or property to effectuate a legal purpose without a judicial warrant to authorize such action. Definition of Quasi-Judicial Power It is the power of administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construe it to the facts so found. ENABLING powers Those that PERMIT the doing of an act which the law undertakes to regulate and would be unlawful without government approval. It refers to the right to. power to issue injunctions Kinds of Administrative Regulations . DISPENSING powers Exemplified by the authority to exempt from or relax a general prohibition. Abatement of nuisance. Its difference from licensing power is that dispensing power sanctions a deviation from a standard.
DISTINCTIONS 1. LEGISLATIVE If the rules/rates are meant to apply to all enterprises of a given kind throughout the country. What administrative agency is doing LEGISLATIVE INTERPRETATIVE Legislative It supplements the statute by filling in the details Legislative regulations have the force and effecr of law immediately upon going into effect. It must be promulgated in accordance with the prescribed procedure. If the regulation is in effect a settlement of a controversy between specific parties. 3. requiring notice and hearing. 4. It must be within the scope of the authority given by the legislature. Capacity that administrative agency is acting in 2. General Rule: Administrative rules of GENERAL application do NOT require previous notice and hearing. It must be reasonable Need for Previous Notice and Hearing 1. Exception: When the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation. Such is accorded by the courts or by express provision of statute. 2. Its promulgation must be authorized by the legislature. . Judicial It says what the statute means 3. 3. No prior notice and hearing is required. 2. it is considered an administrative adjudication. Force and effect Merely persuasive/Received by the courts with much respect but not accorded with finality Requisites of a Valid Administrative Regulation 1. Prescribing of Rates It can be either: 1.
Urgency of immediate action . Administrative regulations of GENERAL application. Tuvera) Special Requisites of a Valid Administrative Regulation with a PENAL sanction 1. Requisites for Proper Exercise of Quasi-Judicial Power 1. based upon a finding of fact. Right to Notice. The law itself must impose and specify the penalty for the violation of the regulation. Letters of instruction issued by administrative superiors concerning guidelines to be followed by their subordinates. Jurisdiction 2. Reasonable opportunity to appear and defend his rights and to introduce witnesses 3. Finding or decision supported by substantial evidence Exceptions to the Notice and Hearing Requirement 1. Interpretative regulations 2. be it actual or constructive 2. QUASI-JUDICIAL If the rules and rates imposed apply exclusively to a particular party. 3. 2. The regulation must be published. Impartial tribunal with competent jurisdiction 4.2. Prior notice and hearing is required. Internal rules and regulations governing the personnel of the administrative agency. Administrative regulations that do NOT NEED to be PUBLISHED: 1. Due process Administrative Due Process : Requirements 1. Requirement of Publication Administrative Regulations that MUST be published: 1. Administrative regulations which are PENAL in nature. 1. (Tanada v. 2. The law itself must make violation of the administrative regulation punishable.
This doctrine states that courts cannot or will not determine a controversy which requires the expertise. Essential to the protection of the rights asserted from the injury threatened. 2. specialized skills and knowledge of the proper administrative bodies because technical matters of intricate questions of fact are involved. the reason being that absent a final order or decision. Summary abatement of a nuisance per se 5. Padlocking of filthy restaurants/theaters showing obscene movies 7. Replacement of a temporary or acting appointee Questions Reviewable on Judicial Review: 1. Order not reviewable in any other way. Cancellation of a passport of a person sought for criminal prosecution 8. expertise. Right was previously offered but not claimed 4. Summary distraint and levy of properties of a delinquent taxpayer 9. It may be appealed even against legislative prohibition because the judiciary cannot be deprived of its inherent power to review all decisions on questions of law. Questions of FACT The general rule is that courts will not disturb the findings of administrative agencies acting within the parameters of their own competence so long as such findings are supported by substantial evidence. Preserve status quo pending further action by the administrative agency. . Question of LAW Administrative decision may be appealed to the courts independently of legislative permission. Doctrine of Finality Courts are reluctant to interfere with action of an administrative agency prior to its completion or finality. power has not been fully and finally exercised. EXCEPTIONS: Interlocutory order affecting the merits of a controversy. Officer assumes to act in violation of the Constitution and other laws. the courts ordinarily accord respect if not finality to factual findings of administrative tribunals. Order made in excess of power Doctrine of Primary Jurisdiction 1. By reason of their special knowledge. and experience. and there can usually be no irreparable harm. Preventive suspension of a public servant facing administrative charges 6. Tentativeness of the administrative action 3.2.
adequate remedy h. 2. to enable the administrative superiors to correct the errors committed by their su bordinates. speedy . judicial proceedings will be suspended pending the referral of these issues to the administrative body for its view. Under this doctrine. when strong public interest is involved I. Doctrine of Exhaustion of Administrative Remedies 1. when there is no other plain. when claim involved is small f. 3. judicial review of administrative cases is usually effected through special civil actions which are available only if their is no other plain. Relief must first be obtained in an administrative proceeding before a remedy will be supplied by the court even though the matter is within the proper jurisdiction of a court. courts should refrain from disturbing the findings of administrative. 1. Note: The doctrines of primary jurisdiction and prior resort have been considered to be interchangeable. Exceptions a. when there is urgent need for judicial intervention e. speedy and adequate remedy. when act complained of is patently illegal d. under a regulatory scheme are within the special competence of an administrative agency.2. bodies in deference to the doctrine of separation of powers. involves constitutional questions b. when irreparable damage is involved g. an administrative decision must first be appealed to the administrative superiors up to the highest level before it may be elevated to a court of justice for review. Reasons : 1. when the subject of controversy is private land . when the question raised is purely legal. Doctrine of Prior Resort When a claim originally cognizable in the courts involves issues which. 3. courts should not be saddled with the review of administrative cases 4. when the administrative body is in estopped c.
1. respondent is a department secretary (DOCTRINE OF QUALIFIED POLITICAL AGENCY – ALTER EGO DOCTRINE) Substantial evidence – defined to mean not necessarily preponderant proof as required in ordinary civil cases but such kind of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. amount involved is relatively small 6. When the administrative remedy is permissive. utter disregard of due process 4. long-continued and unreasonable delay 5. when no administrative review is provided 7. in quo warranto proceedings 2. . concurrent 3.

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In this section I want to draw out some of the primary features that philosophical scholarship has identified in the Tractatus, then show how those features and principles have been found in Greek language scholarship more broadly, even some of the most recent Greek studies being done today. In fact, the types of issues found in Greek scholarship are some of the issues that Wittgenstein critiques in the Philosophical Investigations against the Tractatus. In addition, it will be imperative to bring into the discussion Chomskyan linguistics, because Cartesian/Generative linguistics possesses similar foundations and close ties which all are similar in nature to a logical positivistic structure and is more directly imbibed by Biblical scholars, linguists, and exegetes.
The Tractatus (TLP) is laid out as a series of short statements. In the opening of what some scholars refer to as “the blue book” Wittgenstein makes clear the primary underpinning of his system, if we may call it that, in one of his logical propositions stating, “The facts in logical space are the world.” (TLP § 1.13). He later says, “If I know an object, then I also know all the possibilities of its occurrence in atomic facts… A new possibility cannot subsequently be found.” (TLP § 2.0123). In other words, to know something, is to not to just know something about it, but it is to know that thing truly.
If I know what an object is according to this ideology, then I know all the occurrences of logical facts about that object which cannot be broken down any further. This is because language is a mirror of reality as Wittgenstein states, (TLP § 6.13) the question then becomes about logically minimizing the linguistic hurdles, ambiguity or arbitrariness.
This type of philosophical underpinning that Wittgenstein and others developed lives within the stream of rationalism. The principles that are purported by the blue book, namely that atomic facts are known a priori, and that language is at its root logical are more pervasive outside of philosophical discussions in grammatical discourse. The first place to look for practical applications is within the world of linguistics, especially considering Wittgenstein’s explicit interest in grammar and linguistics in both the Tractatus and Philosophical Investigations. The more popularized version, even if indirectly, of these concepts and rationalistic positions is found in Chomskyan/Generative grammars. There are clear overlaps, and it may be suggested that Chomsky is heavily influenced by earlier Wittgenstein. Apart from being within the same philosophical stream, rationalism, there are doctrines in both thinkers that are composite features of their thoughts.
*In this interview it is very interesting to see that Chomsky has taken issue with some of the specific adjustments that Wittgenstein makes to his system in PI. It seems that if Chomsky could affirm Wittgenstein as a whole he would.
**This is not to say that both are saying the same exact things either. I could also bring in differences, such as the biological nature and how Chomsky asserts universals, but due to space and intent of the paper I didn’t feel it was as relevant.
If it is true that there is an organic connection between Wittgenstein’s earlier work and Chomsky’s theory of grammar, then it is possible to see how these concepts from Wittgenstein have had an impact, direct or indirect, through Chomskyan thought into Biblical studies. Outside the guild of biblical scholarship many people have criticized Chomsky on his linguistic framework, generative linguistics is not the only brand of linguistics available. Even further, Chomsky’s theories do not hold the same weight they did when he first began his academic career, this is most evident in the aggressive critique of Peter Collier and David Horowitz, in their book The Anti-Chomsky Reader.
Specifically, two linguistics scholars Robert D. Levine and Paul M. Postal wrote a chapter, entitled, “A Corrupted Linguistics” in which they argue that there has been a mass exodus of Chomsky’s approach (Levin & Postal 2004 203). Despite the tactics taken by Collier and Horowitz, the move away from this perspective is noticeable in other related fields (literary studies, English, philosophy, theology). Unfortunately, there has been a sluggish departure from this philosophical perspective within Biblical studies, especially Greek and Hebrew scholarship.
Nonetheless, this metaphysically dependent method has proven insufficient for all our data. Baker summarizes earlier Wittgenstein saying, “Any possible language is governed by a complex system of rules of logical syntax. These rules determine the combinatorial possibilities of symbols, thus delimiting the bounds of sense.” (Baker & Hacker 2010 41).* An example of this in Wallace is found early on in his grammar, when explaining what he calls unaffected meaning which is, “the meaning of the construction in a vacuum-apart from contextual, lexical, or other grammatical intrusions.”(Wallace 1997 2). This is simply an impossible situation, in what case does any word or part of speech exist outside an utterance unaffected by its grammatical context? To put it simply in the words of Wittgenstein, “Naming is not yet a move in a language-game – any more than putting a piece in its place on the board is a move in chess.” (PI, § 49.) The problem with this method, especially found in Wallace’s treatment of the language, actively avoids doing any more than naming, is that there is no ontological relationship between the language and the myriad of morphosyntactic categories created for the purpose of exegesis.
(TLP § 3.325). See also: TLP § 4.1272; RLF § 162; WWK § 49, 78, 104, 220; LWL § 120.
If linguists are now abandoning the traditionally Chomskyan approaches to language research (see Martin Haspelmath’s recent essays, “Chomsky now rejects universal grammar” and “Is generative syntax simply a useful descriptive tool?”), then why are Biblical scholars and Biblical Greek grammarians still imbibing assertions about language that are, effectively, generative-adjacent because of their rationalist underpinnings? One can imagine that there are many reasons this is the current trend in Biblical scholarship, but one reason might be that Greek and Hebrew are dead languages, so applying a methodology that is unapologetically interested in metaphysics seems more intuitive, especially since other methodologies may require more socio-historical and contextual knowledge which is not a commodity easy to come by in Biblical studies. If this is in fact the case, Biblical scholars and grammarians should not shy away from other methods if they provide a framework that helps explain our data.
This should lead us to the question: if these problems are so pervasive in Greek scholarship, what corrective is there? Perhaps Wittgenstein is the perfect correction to Wittgenstein. We need his insight into use-based linguistics to correct his rationalist positions from his own earlier writings.


text:
Warranty — Builder-vendor of residence — Liability to vendee — Implied warranty exists that performance will be workmanlike — Damages — Punitive damages not allowed, when — Action one strictly on contract — Fraud and deceit — Cannot be based on promises of future conduct.
1. A builder-vendor of a residence impliedly warrants to a vendee that he will perform his duties in a workmanlike manner. Benson v. Dorger, 33 Ohio App.2d 110, overruled.
2. An action which is found by the court to be based strictly on the breach of a contract does not permit an award of punitive damages.
3. Fraud cannot be predicated upon promises or representations relating to future actions or conduct.
APPEAL: Court of Appeals for Warren County.
Messrs. Lindhorst Dreidame, Mr. Leo J. Breslin, and Mr. James D. Ruppert Associates, for appellees.
Messrs. Beirne Wirthlin, Mr. Michael A. Fulton, Messrs. Young Jones, and Mr. William H. Kaufman, for appellant.
National Homes Corporation, the entity fabricating the materials constructed by the defendant, and the city of Franklin, Ohio, were named parties defendant, but were subsequently dismissed, and do not figure in this appeal.
The trial court also submitted to the jury the issue of punitive damages claimed by plaintiffs, instructing them that if they found for the plaintiff on either of two theories, namely, on the basis of actual or constructive fraud committed by defendant against plaintiffs, or, alternately, that the failure to construct the house in a workmanlike manner was "deliberate, malicious, and evidences a willful disregard of defendant's obligation toward the plaintiffs," they might return punitive damages in favor of plaintiffs. The jury returned its verdict on this issue by finding the sum of $125,000 due plaintiffs as punitive damages. A judgment was accordingly entered and a motion for a new trial and for a judgment notwithstanding the verdict resulted in the remittitur heretofore mentioned in the amount determined for compensatory damages, but the court permitted the punitive damages to stand. The remittitur was accepted by plaintiffs and a judgment was accordingly entered awarding plaintiffs $9,650 compensatory and $125,000 punitive damages.
Defendant presents an aggregate of eleven assignments of error for review, but this unwieldly number may, we believe, be more readily dealt with by considering them in the two categories into which they seem logically to fall: first, those assignments dealing with alleged procedural deficiencies occurring during the trial and, secondly, those assignments dealing with what we deem to be the dispositive questions of general law raised by the pleadings and the evidence.
The procedural complaints of defendant are raised in its fourth, fifth, sixth, seventh, eighth, and eleventh assignments of error. In the fourth, fifth and eighth assignments, defendant raises objections to rulings of the trial court on matters which are essentially within the sound discretion of the court, and in which rulings, after a careful review of the record, we are able to discover no error prejudicial to the defendant.
These concern discovery after the commencement of the trial and motions to declare a mistrial.
In the sixth assignment, the defendant asserts error in the court's refusal to permit it to show an alternate method of valuation of damages ( i. e., the market value of the house had it been properly constructed as contemplated by the contract, less the reasonable market value of the house as actually delivered). Whatever merit this argument might have is unnecessary to determine inasmuch as the difference between the defendant's own value of $6,996 as the cost of repairs under the measure of damages given to the jury by the trial court, and its proffered evidence under its "alternate" method of valuation of damages of "between six and seven thousand dollar(s)," is so minimal that no prejudice can be apprehended in the denial of the proffered testimony by the trial court.
"The Court: * * * Now, as the Court has substantially completed its instructions, does counsel for either side have any comment for the record? Mr. Ruppert?
"Mr. Ruppert: No, your Honor, I haven't.
"Mr. Kaufman: No, your Honor."
"The Court: All right. I have received a note that you have given to the Bailiff with this communication: `May we have a copy of the rules for determining fraud for punitive damages?' The answer to that question is, no, because contrary to what appearances may be, these explanations are not laid out in that kind of a concise form and it would be inappropriate for me to give you copies of any notes and so forth."
The court went on to add that it would, if the jury requested it, "reread or review for you what I have already given you, if you want me to do that," or go over any point of the instructions with which the jury might be experiencing trouble. Since the jury had been deliberating only a few minutes, the court observed that it was doubtful if such trouble had actually been experienced, and advised them to go back to their deliberations, and to return to him if any specific question thereafter arose. No further requests for additional instructions were received. We conclude that no error prejudicial to appellant attended this procedure.
As a consequence of our determinations, we accordingly overrule appellant's fourth, fifth, sixth, seventh, eighth and eleventh assignments of error.
We come next to consider those assignments of error, the first, second, third, ninth, and tenth, which collectively raise the more substantial questions in this appeal, and which may in turn be divided into two categories: first, those assignments of error asserting that the judgment for punitive damages was contrary to the manifest weight of the evidence and/or was the product of passion and prejudice, and, second, those assignments asserting that, in view of the pleadings and the evidence, the issue of punitive damages should never as a matter of law have been submitted to the jury, but, having nevertheless been submitted, should have been remedied by granting the motion for a new trial or the motion for a judment notwithstanding the verdict. Because we have concluded that the second of these two categories raises those questions clearly dispositive of the issues on appeal, we have elected to proceed to the disposition of this appeal on those issues.
"Under any view of the facts of this case, conduct of the defendant's agents and the relationship of the plaintiffs and the defendant was such that no theory of liability could support submission of the issue of punitive damages to the jury."
If this proposition is true — and we conclude that it is — then it inescapably follows that the trial court erred in not granting to appellant a judgment notwithstanding the verdict on the issue of punitive damages.
The theory of the plaintiffs in seeking punitive damages was twofold: either fraud was committed on the plaintiffs, or, if not fraud, the defendant's failure to construct the house in a workmanlike manner grew out of a deliberate, malicious and willful disregard of its obligations to plaintiffs. As to the first of these grounds, while it is abundantly clear that a finding of fraud may sustain, under appropriate circumstances, a determination of punitive damages, we are unable to discover within the record of this cause credible evidence in support of at least one essential element of fraud.
See, generally, 16 Ohio Jurisprudence 2d 178, Damages, Section 156; annotation, 165 A. L. R. 614.
"Representations as to what will be performed or will take place in the future are regarded as predictions and are not fraudulent, irrespective of whether the matter is before the court as an action for the deceit or defensively as a ground of avoidance of a written contract. A false assertion presupposes that an event has occurred, that a duty has been performed, that a fact has intervened or that an authority exists, either or all of which may have reduced the contract or prevented its being consummated." 24 Ohio Jurisprudence 2d 646, 647, Fraud and Deceit, Section 38.
"Of course, a fraudulent representation must be of an existing fact in order to justify an action in tort for damages sustained by reason of an acting upon such representation.
"Here there is proof of existing facts, to wit, the mental attitude and the intent of Keller not to keep his agreement, and the falsity of his promise." Id. at 321-22.
Other examples of extensions of the general rule, supra, might be cited, as where the representations as to future events deal with matters which depend for their occurrence upon the acts of the party making them (Restatement of Torts, Section 530 ) and especially where the refusal to act upon the promise is "willful and wrongful." Monaghan v. Rietzke (1949), 85 Ohio App. 497.
The immediate question, then, is whether the evidence in the matter sub judice presented a question of fact for the jury under any such theory of fraud cognizable in this state. A review of the record reveals a reliance by plaintiffs upon the representations of agents of the defendant corporation "that their product was of high quality material and construction, when said material [was] of poor quality and is substandard." Assuming arguendo that the corporation was bound by the representations of its sales personnel to plaintiffs, the representations in question appeared to consist of statements that the defendant was "either the largest or one of the largest home builders in the country," that when plaintiffs expressed concern over various materials to be incorporated into the structure, the salesman assured them that of the high quality products, "they used only the very best," and that defendant's "engineers were trained to design a house to any specifications and that he could forsee no problem because this was their job, and they were the best." Elsewhere, defendant's agents were said to have assured plaintiffs that "they had the very best engineers and used the very best products," and would use "the very highest quality" of materials and workmanship.
Plaintiffs admitted that no specific representations as to the quality of the lumber used in the house were made to them, and, in point of fact, No. 2 grade lumber was used in whole or in large part, this being the second highest of 4 grades of construction lumber and the grade generally used in the construction of homes within the modest price class contracted by the plaintiffs, and otherwise in conformity with the requirements of the applicable building code. One of plaintiffs' witnesses described the materials as "not consistent," but another of plaintiffs' witnesses testified that if certain structural repairs having little or nothing to do with the original quality of materials were made "this home will be in an excellent state of repair."
We conclude from the foregoing and other relevant portions of the transcript, that plaintiffs did not adduce sufficient credible evidence of fraud to have justified the court in submitting this theory, for punitive damages, to the jury. Clearly, there was no misrepresentation of an existing fact or circumstance as to materials, since they were not in existence at the time, and we are not able to conclude that the evidence furnished any basis for inferring a misrepresentation of the then state of the agents' minds when they represented that the goods would be of the "highest quality." Indeed, the matter assumes, with respect to the quality of lumber (which was the only significant alleged deficiency in materials argued by plaintiffs), the aspect of "puffing" rather than actionable fraud, Wilchins v. Pool (1971), 29 Ohio App.2d 223.
Moreover, as to the additional requisite element of reliance on the arguable misrepresentation, it is difficult to conceive that the plaintiffs could have understood it in any way other than a representation that the materials would be of the highest quality for comparable housing. No one has a right to expect sandalwood and teak to be incorporated into a $25,000 house, unless, that is, he is expressly told that such materials will be used. We find little evidence that the quality of materials was not of an anticipatable standard for comparable housing, and certainly no evidence that any arguable deficiency in such quality was the product of fraudulent intent.
Schubert v. Neyer (1959), 12 Ohio Op. 2d 231, 165 N.E.2d 226; Public Finance Corp. v. Callopy (1959), 82 Ohio Law Abs. 65, 164 N.E.2d 205.
The case with respect to workmanship is, however, on another footing entirely. Whatever one may say in expiation of the materials furnished for the home, the workmanship in utilizing the materials was concededly bad. To consider the structural defects alone, the steel beam supporting the first floor was so misaligned that many joists bore on less than one inch of their surface. The displacement of one joist would cause a "domino effect" on the others, and a possible collapse of the house. The floors swayed, nails popped out of wall boards because of stress, and other untoward symptoms manifested themselves shortly after the plaintiffs occupied the premises. While the foregoing catalogue of construction ills is clearly as insufficient as the alleged deficiencies in materials to sustain fraud, since the workmanship was no more in existence at the time of the representations than the materials, and since there is not a shred of evidence to convict the sales personnel of any present knowledge, intent, or command that such would be the state of affairs when construction commenced, nevertheless, the issue of workmanship becomes relevant in considering the second of the plaintiffs' theories to justify the award of punitive damages, namely, whether or not the elements of fraud existed, the failure to construct the house in a workmanlike manner was occasioned by a deliberate, malicious and willful disregard of the defendant's obligations toward plaintiffs, and such malice may lawfully and appropriately be punished by the award of punitive damages.
It is true, as plaintiffs argue, that in a proper case actual malice (a state of mind in which conduct toward another is characterized by hatred, ill will, a spirit of revenge or retaliation, or implied malice — i. e., malice implied from wrongful acts purposely done without reason or excuse to the injury of another) may support an award of punitive damages. 16 Ohio Jurisprudence 2d 184, Damages, Section 161. The question, however, is whether the case presented by plaintiffs is such a proper case.
"Punitive damages are not recoverable in an action for breach of contract."
The Ketcham case is also notable for the rule, expressed in the first paragraph of the syllabus, that the pleader does not alter what is essentially an action for breach of contract by adding that the breach was unlawfully, willfully, wantonly, or maliciously done.
The court also stated: "While the facts of this case might well have justified a pleading charging a tort, we are unable from the amended petition itself to reach any other conclusion than that the gravamen of the complaint is the breach of the contract, and that the words "willfully, wantonly, maliciously" add nothing thereto and must have been intended by the pleader to characterize the motive and purpose of the perpetrator of the breach." Id., at 377.
Following the Ketcham case and to the same effect were Saberton v. Greenwald (1946), 146 Ohio St. 414, and Davis v. Tunison (1959), 168 Ohio St. 471. Other Ohio authorities standing for the proposition that punitive damages are not available in actions for breach of contract include Schell v. Kaiser-Frazer Sales Corp. (1971), 28 Ohio App.2d 16, and Refrigeration Air Conditioning Inst. v. Rine (1946), 75 N.E.2d 473. A recent decision of the United States Court of Appeals in Battista v. Lebanon Trotting Assn. (C. A. 6, 1976), 538 F.2d 111, restates the above Ohio rule, distinguishing the cases of Kirk v. Safeco Ins. Co. (1970), 28 Ohio Misc. 44, relied upon by plaintiffs, and Sweet v. Grange Mut. Cas. Co., unreported, Court of Appeals for the Seventh District No. 607, decided June 30, 1975, both of which involved an insurer which willfully and wrongfully refused to pay a valid claim, a violation of a special duty requiring a "special consideration" not relevant to ordinary contracts. In a similar vein are Craig v. Spitzer Motors (1959), 109 Ohio App. 376, and Armstrong v. Feldhaus (1950), 87 Ohio App. 75, which although praying relief for breach of contract, contain separate distinct claims of tort damage, namely, fraud and conversion, respectively, for which an award of punitive damages was appropriate.
What then may be said of the instant case; does it sound in tort, or is it an action for breach of contract? As established earlier, the interjection here of fraud as a separate cause was abortive and should not have been submitted to the jury. This is not, then, the Craig case. Further, we have learned from Ketcham v. Miller, supra, that simply characterizing an action as one "willfully, wantonly, and maliciously" done adds nothing new to a cause essentially directed to securing relief for a breach of contract.
What we are left with in the instant matter, then, are the first three counts of the complaint, less the pejorative adjectives. These counts allege, respectively, an execution of a contact to construct a house, with the construction performed in a "defective and unworkmanlike manner," resulting in damage to plaintiffs (first count), a breach of warranty (third count), and its negligent design, manufacture, inspection, assembly, and construction (second count). Since no credible evidence accompanied it, the second count was properly not submitted to the jury by the trial court, who instead instructed the jury that the defendant had, as a matter of law, committed a breach of contract for which they were instructed to determine compensatory damages. We conclude that the complaint, stripped of its surplusage, sounds in contract, and in this respect we find ourselves in agreement with our brothers on the Court of Appeals for Franklin County in Lloyd v. William Fannin Bldrs. (1973), 40 Ohio App.2d 507, where, in a fact situation otherwise indistinguishable from the instant case, the court held the action for damages a failure "to complete the building in a workmanlike manner" to be ex contractu and therefore not governed by the four year statute of limitations dealing with actions ex delicto.
The Court there stated: "In other words, we hold that the duty imposed on a builder-vender to build structures in a workmanlike manner arises out of an implied bargain, an implied provision, an implied condition, or an implied term of the sale; whatever the name which is attached to such duty, it is a duty which is implied in law and comes from the contract between the builder-vendor of the real-property structure and the vendee." Id., at 510.
This conclusion requires us to overrule the decision reached by our brothers, sitting by designation, in Hamilton County in Benson v. Dorger (1972), 33 Ohio App.2d 110, and we do so herewith.
It follows, then, from our conclusion that the instant action, stripped of its unproven allegations of fraud, is one ex contractu for damages resulting from the breach of a contractually assumed duty to construct in a workmanlike manner commensurate with the hazards of the lot and area, that the law of this jurisdiction limits recovery to compensatory damages and does not permit the consideration and award of punitive damages. The trial court erred, therefore, in submitting the issue to the jury, and, in terms of defendant's tenth assignment of error, erred to the prejudice of defendant in overruling defendant's motion for a judgment notwithstanding the verdict, as to the issue of punitive or exemplary damages.
While this determination, which is dispositive of the central issue raised in this appeal with respect to the appropriateness of the judgment of punitive damages, moots other questions raised by defendant — most notably a difficult and unrewarding examination into whether the judgment was the product of passion and prejudice — we are constrained to note our reservations as to two other aspects of this case.
"Actual or express malice has been defined as that state of mind under which a person's conduct is characterized by hatred or ill will, a spirit of revenge, retaliation, or a determination to vent his feelings upon other persons. Legal or implied malice, on the other hand, is that which the law infers from or imputes to certain acts, and has been defined as that state of mind under which a person does a wrongful act purposely, without a reasonable or lawful excuse, to the injury of another.
"Appellants assert in their sole proposition of law that intentional, reckless, wanton, wilful and gross acts which cause injury to person or property may be sufficient to evidence that degree of malice required to support an award of punitive damages in tort actions. This broad statement is also correct; actual malice may be inferred from conduct and surrounding circumstances. Davis v. Tunison, supra. However, this court concurs in the conclusion of the Court of Appeals that the record in this case contains absolutely no evidence from which actual malice upon the part of Columbus Finance can be inferred. Therefore, the Court of Appeals correctly reversed the trial court's award of punitive damages and attorney fees." Id., at 184.
As in the Columbus Finance case, we are unable to find in this record credible evidence of malice of either variety, actual malice or malice inferred from conduct. Indeed, we note that plaintiffs' own witness testified that the defendant had voluntarily corrected some construction defects, and had offered to correct the major structural defects, but was rebuffed by the plaintiffs from discussing or effecting them. Certain of these repairs and offers to repair were confirmed by the plaintiffs who were, however, by this time in no mood to indulge defendant's workmen, and perhaps understandably so. But whatever the justification for plaintiffs' irritation with defendant's construction habits, we find no evidence in the record from which the jury could have inferred the degree of malice necessary under Ohio law to sustain an award of punitive damages.
"Exemplary or punitive damages, being awarded, not by way of compensation to the sufferer, but by way of punishment to the offender, and as a warning to others, can only be awarded against one who has participated in the offense. A principal, therefore, though, of course, liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages merely by reason of wanton, oppressive, or malicious intent on the part of the agent. In other words, where that which is tantamount to punitive or exemplary damages is to be recovered by reason of the willful character of the wrongful act, proof of this knowledge and willfulness on the part of the party producing the wrong must be made. The employer cannot be punished for the personal guilt of his servant or agent, unless the employer authorized, ratified, or participated in the wrongdoing. 5 Fletcher on Corporations, Section 3354; Mechem on Agency, Section 2013, 2014, 2015; L. S. M. S. Ry. v. Prentice, 147 U.S. 101, 13 S. Ct. 261, 37 L. Ed. 97."
The above rule has been followed and applied in two cases from this district, Fitscher v. Rollman Sons Co. (1929), 31 Ohio App. 340, and Stock Yards Bank v. Seal (1927), 27 Ohio App. 179, and elsewhere in Levin v. Nielsen (1973), 37 Ohio App.2d 29. Where the master ratifies the fraud or malice of his agent, as in Saberton v. Greenwald (1946), 146 Ohio St. 414, the rule is otherwise, but we can find no such evidence of ratification by the defendant corporation here even if we were to assume malicious acts of construction by the defendant's agents occurred.
It follows from what we have concluded above that two additional reasons are apparent in this record as to why the issue of punitive damages should not have been submitted to the jury, apart from the basic rule recited supra, with respect to the unavailability of such damages in breach of contract actions: the absence of evidence from which the jury could have found or inferred the requisite malice, and the absence of evidence of the direction of or ratification by the corporation of its agents' objectionable acts. Therefore, we find the defendant's ninth and tenth assignments of error to be well taken, inasmuch as the trial court erred in not granting, as to the issue of punitive damages only, a judgment in favor of defendant notwithstanding the verdict.
The balance of defendant's assignments of error not heretofore ruled upon, being subsumed in or mooted by these conclusions, are overruled.
It is therefore the order of this court that the judgment of the trial court be modified by granting a judgment notwithstanding the verdict to the appellant as to punitive damages; in all other respects, the judgment of the trial court is affirmed.
SHANNON, P. J., and KEEFE, J., concur.
"* * * [E]xemplary damages are recoverable for a tort committed in connection with, but independently of, the breach of contract, where the essentials of an award of such damages are otherwise present, the allowance of such damages being for the tort and not for the breach of contract. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse, or gross negligence which amounts to an independent tort."
Although differing from my brothers in their evaluation of the instant action as one sounding exclusively in contract, while I believe the complaint also amounts to a cause of action in tort, the full court arrives at the same end result because of the failure of the plaintiffs to prove actual malice, even though it may be inferred in this state from conduct and surrounding circumstances.
Therefore, I concur with the determination that the judgment of the trial court be modified by granting a judgment notwithstandinging the verdict to the appellant as to punitive damages; otherwise, the judgment of the trial court should stand.

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text:
This is an application pursuant to Section 460 of the Family Court Act for an order directing the entry of a money judgment in the sum of Three Thousand Three Hundred Twenty ($3,320.00) Dollars, plus costs, on arrears reserved generally by this Court on August 12, 1974.
Petitioner filed a USDL petition on April 4, 1972, in the County of Orange, State of California. Said petition was forwarded to the Nassau County Family Court in accordance with Article 3-A, Section 37, of the Domestic Relations Law. Respondent, a resident of Nassau County, State of New York, appeared on May 12, 1972, and upon his consent, a final order of support was entered ordering respondent to pay the sum of Thirty ($30.00) Dollars per week through the Probation Department for the support and maintenance of one child, effective May 15, 1972.
A Violation of Support Order petition was filed on August 28, 1972, alleging that the respondent had failed to comply with the order and that arrears at that time were alleged to be Three Hundred Seventy-Five ($375.00) Dollars.
After personal service of the respondent was attempted by the Sheriff’s Department and an affidavit returned by them indicating that they were unable to locate and serve the respondent, a warrant was issued for the respondent’s arrest on January 29, 1973.
At the request of the petitioning Court, on September 3, 1974, on a So Ordered Calendar, the warrant issued on January 29, 1973, and the support order made on May 12, 1972, were vacated. Arrears in the amount of Three Thousand Three Hundred Twenty ($3,320.00) Dollars were reserved generally as of August 12, 1974.
On October 23, 1979, petitioner herein applied to the Court by an Order to Show Cause dated November 5, 1979, for a judgment on the arrears pursuant to Section 460 of the Family Court Act.
The respondent appeared with counsel on January 14, 1980, and submitted a written answer denying each and every allegation of paragraph 3 of the petition and interposing the following affirmative defenses: (1) that petitioner is not entitled to the relief sought by reason of laches, (2) that petitioner’s application is barred by reason of the three year Statute of Limitations contained in Section 214(2) of the Civil Practice Law and Rules.
Respondent made an oral motion to dismiss the application on the same grounds.
The Family Court Act explicitly gives the court continuing jurisdiction in support proceedings “until its judgment is completely satisfied.” In the present matter before the Court, the arrears were reserved generally by the order dated September 3, 1974; therefore, the Court’s judgment has not been completely satisfied and would not be until the arrears were either vacated, modified or subject to a money judgment entered under Section 460 or otherwise disposed of.
In W. v. W., 70 Misc.2d 1041, 335 N.Y.S.2d 152 (Family Court, Schenectedy County, 1972), cited by both petitioner and respondent, arrears were held in abeyance after a support order was terminated.
The Court reasoned that when the arrears were held in abeyance, the “only fair interpretation of the phrase as used by the court is that jurisdiction was reserved and continued for the purpose of future disposition of the liquidated obligation to pay arrears as the later circumstances of the parties might require. This is obviously what that Court intended to do and what it had a right to do under Section 451 of the Family Court Act . . . The final disposition of the arrears thus continued here as a matter pending before this Court, and the proceeding stayed alive for this purpose. As such it became subject to the provisions of Section 460.” See also Matter of Frances B. v. Robert B., 66 Misc.2d 227, 320 N.Y.S.2d 843.
The respondent cites the case of Anonymous v. Anonymous, App.Div., 422 N.Y.S.2d 89, as being applicable to the present proceedings. In the Anonymous, case, the court was called on to review Section 234 of the Domestic Relations Law which authorized the court in a matrimonial action to make a determination as to the title of property arising between the parties. The defendant raised a three year statute of limitations which would bar the recovery of a chattel (CPLR 214(3)) urging that the three year statute of limitations applies to Section 234 of the Domestic Relations Law. In reversing Special Term, which had granted the motion for the return of certain letters written to the plaintiff and in possession of the defendant, the Appellate Division applied the three year statute.
In the matter before this Court, the petitioner seeks a judgment for arrears reserved generally in a support proceeding previously commenced and still continuing. A new action has not been brought nor is the application for a judgment on arrears an attempt to bypass the statute of limitations as in the Anonymous case. There the cause of action for recovery of a chattel existed outside the matrimonial action itself.
In the case at issue, the remedy of a judgment on arrears exists under Section 460 of the Family Court Act as an outgrowth of the continuing jurisdiction in the Family Court action which has not been “completely satisfied.” There is no independent civil cause of action for enforcement of such rights.
Therefore, the provisions of Section 451 of the Family Court Act apply.
The respondent’s other affirmative defense is one of laches. The application of the doctrine of laches requires more than delay of time. In Righter v. Righter, 44 A.D.2d 669, 354 N.Y.S.2d 640 (First Dept., 1974), the court held that the mere delay of eight years in bringing an action for arrears is not enough without more evidence, to vacate arrears. See also Renkoff v. Renkoff, 285 A.D. 876, 137 N.Y.S.2d 428 (First Dept., 1955).
The record indicates that the warrant for the respondent’s arrest could not be executed in the county of his residence from January 29, 1973, until September 3, 1974. The support order was vacated without respondent’s appearance in Court. Credence can, therefore, be given to petitioner’s contention that she was unable to locate the respondent since 1973 and that she filed the aforementioned petition as soon as she learned of his whereabouts.
The respondent’s contention that he did not assert visitation rights with his child in five years because of his belief that petitioner had left the jurisdiction is contradicted by the facts. This is a Uniform Support of Dependents action and the respondent was aware that the petitioner was outside the jurisdiction of the court at the time the action was commenced. Further, the petitioner’s address was known to this Court. Respondent offers no evidence that any attempt was made to exercise his rights of visitation.
Therefore, testimony must be taken to establish the respective circumstances of the parties.
Further, in Pavich v. Pavich, 24 A.D.2d 482, 260 N.Y.S.2d 698 (Second Dept., 1965), the court held that proof should be taken as to the current financial ability to pay the arrears and proof should be taken as to the current financial status of the wife in determining if the accrued arrears should be reduced, and if so, the extent of the reduction. See also Abbondola v. Abbondola, 40 A.D.2d 976, 338 N.Y.S.2d 175 (Second Dept., 1972).
Accordingly, the respondent’s motion to dismiss on the grounds that the petitioner’s application is barred by reason of the three year statute of limitations contained in Section 214(2) of the CPLR and on the grounds of laches is denied.
The matter is set down for a hearing in this Court on April 1, 1980, to determine the extent of the arrears for which judgment should be granted, as justice requires.
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