Republic of the Philippines

Sixth Judicial Region

REGIONAL TRIAL COURT
BRANCH 41, BACOLOD CITY
Negros Occidental
-oOo-

THIRSTY R US, as represented

by ALEX C. SOLEDAD, in his capacity
as President,
Plaintiff,

- versus - Civil Case No. 1848-04

For: Collection for a Sum
of Money

PRECIOSO E. DIMAUHAW
and BERTA D. MASAGANA,
Defendants.
X----------------------------X
POSITION PAPER
FOR THE DEFENDANTS

DEFENDANT: by Counsel to this Honorable Court by way of

compliance with the order dated January 25, 2019 copy of which
was received January 29, 2019, respectfully submits this position
paper and in support thereof alleges as follow:

1.0 The case before the Honorable Court is a complaint for the
collection of sum of money filed by the petitioner, Thirsty R Us, as
represented by Alex C. Soledad, in his capacity as president,
against defendants, Precioso Dimauhaw and Berta Masagana. The
Defendants respectfully pray to this Honorable Court the dismissal of
the complaint for lack of cause of action with costs against the
plaintiff; and that the defendant’s compulsory counterclaim be
granted.

2.0 PARTIES
2.1 Plaintiff, THIRSTY R US (TRU), is a domestic

corporation engaged in the business of manufacturing

flavored mineral water, with a principal address located at

5F, TRU Building, 6th Lacson Street, Bacolod City,

Philippines. ;

2.2 Defendants PRECIOSO E. DIMAUHAW, of legal age,

Filipino, single, and BERTA D. MASAGANA, of legal age,

Both Filipino Citizen;

STATEMENT OF FACTS

3.0 On September 15, 2018, the Plaintiff alleges that Defendants

obtained a credit from the Plaintiff a total amount of Four
Hundred and Thirty-Eight Five Hundred and Forty-six and
Eighty-eight Centavos (PhP 438,546.88), Philippine Currency.

4.0 The Plaintiffs also alleged that Defendants still have an

Outstanding Balance to Plaintiff amounting to Four Hundred and
Thirty-Eight Five Hundred and Forty-six and Eighty-eight
Centavos (PhP 438,546.88), Philippine Currency. Said Defendant
has failed and neglected to pay, without just and valid grounds,
the said Outstanding Balance for the aforementioned loan
accommodation

5.0 That defendants admit having obtained a credit of Four

Hundred and Thirty-Eight Five Hundred and Forty-six and
Eighty-eight Centavos (PhP 438,546.88), Philippine Currency.

6.0 That Defendants tendered their series of payments before

November 14, 2018, amounting to THREE HUNDRED NINETY
THOUSAND PESOS (P390,000.00) to the Plaintiff’s accounting
office as received by their head accounting officer, Mr. Vicente G.
Abad, in the presence of Ms. Lilly A. Cruz and Ms. Ivy B. Aguas, both
of legal age and accounting officers of the Plaintiff. Attached herein,
marked as Annex “A”, “B” and “C”;

7.0 That Defendants admits they have received Plaintiff’s demand

letter in Paragraph seven (7) but responded through a letter, dating
November 24, 2018, averring that the remaining balance is only
FORTY EIGHT THOUSAND FIVE HUNDRED FORTY SIX PESOS and
88/100 (P48,546.88) not FOUR HUNDRED THIRTY EIGHT
THOUSAND FIVE HUNDRED FORTY SIX PESOS and 88/100
(P438,546.88) as the Plaintiff alleges. Copy of the letter is attached
herein, marked as Annex “D”;

8.0 That Defendants was not able to receive any objections on their
reply to the Plaintiff’s demand letter and had a reason to believe that
there no more exists any issue on the Defendant’s Outstanding
Balance and tendered their payment of FORTY EIGHT THOUSAND
FIVE HUNDRED FORTY SIX PESOS and 88/100 (P48,546.88) on
November 26, 2018 in the presence of Ms. Lilly A. Cruz and Ms. Ivy B.
Aguas. Copy of receipt is hereto attached as Annex “E”.

9.0 To this date, the Defendants have no remaining credit to the

Plaintiff as the same have already been paid. Therefore, there can be
no action where no injury is sustained, the truth being those alleged
in the preceding paragraphs.
ISSUES

The issues to be resolved herein are as follows:

1. Whether or not the credit obtained was paid; and

2. Whether or not plaintiff is entitled to recover litigation expenses,
collection charges/liquidated damages and such other reliefs from
defendants as prayed for in his Complaint.

The issues are hereby discussed hereunder.

ARGUMENTS

To these issues the complainant will discuss them briefly and

successively;

The complainants were dismissed from service without the

benefit of due process as no notice or memorandum was issued to
them when they were terminated from work.

In termination cases, the employer has the burden of proving

by substantial evidence that the dismissal is for just or authorized
cause. If the burden discharge the burden of proof, the dismissal is
deemed illegal. (Alex Gurango vs. Best Chemicals and Plastic, Inc.
et al, GR No. 174593, August 25, 2010). In the above entitled
case, respondents failed to discharge the burden when it
terminated the service of the complainants without any valid
reasons.

Complainants’ dismissal from service is illegal and the

respondents violated Article 281 of the Labor Code on
Probationary Employment which state:

“Article 281. Probationary employment shall not exceed six

(6) months from the date the employee started working, unless it is
covered by an apprenticeship agreement stipulating a longer
period. (xxxxxx) An employee who is allowed to work after a
probationary period shall be considered a regular employee.”

Without a doubt, complainants dismissal from service is

illegal, thus they are entitled for reinstatement for a regular
position, payment for unpaid Service Incentive Leave, 13th month
pay, and the difference of their underpaid wages from the
minimum wage requirement.

On payment of wage differential, 5 days service incentive

leave and 13th month pay — complainants received an average
salary if P6,000.00 a month or equivalent to P250.00 a day. Wage
Order No. RBVI-24 which took effect July 12, 2018 provides
payment of P323.50 a day for workers in non-
agriculture/industrial/commercial employing more than ten
employees.

Article 95 of the Labor Code provides payment of 5 days

service incentive leave pay for every employee who has tendered
at least one year of service be entitled to a yearly service incentive
leave of five days with pay.

While Presidential Decree 851 provides payment of 13th

month pay to employee in private establishment Computation of
which is total basic salary earned for the year exclusive of
overtime, holiday pay, and night shift differential pay divided by 12
and 13th month pay. Since complainants are under-paid of their
salary they are entitled to payment of the same for the past three
years.

In Labor cases, the burden of proving payment of monetary

claims rest on the employer on the reasoning that the pertinent
personnel files, payrolls, records, remittances, and other similar
documents- which will show that overtime, differentials, service
incentive leave and other claims of the workers have been paid-
are not in the possession of the workers but in the custody and
absolute control of the employer. (SLL International Cables
Specialist vs. National Labor Relations Commission).

On payment of moral and exemplary damages.-

Complainants are entitled to payment of moral and exemplary
damages in view of the wrongful act of the respondents and by
reason whereof the former suffered sleepless nights, besmirched
reputation, wounded feelings and social humiliation.

Moral damages are recoverable only where the employees’

dismissal was attended by bad faith or constituted an act
oppressive to labor or were done in a manner contrary to morals,
good customs, or public policy. Lack of due process was held to
justify an award of moral damages. (National Service Corporation
vs. NLRC, 168 SCRA 122).

Exemplary damages may be awarded only if the dismissal

was effected in a wanton, oppressive or malevolent manner.
(Garcia cs. NLRC, 235 SCRA 632, Estiva vs. NLRC, 225 SCRA
169).

On payment of attorney’s fee.- Complainants are entitled to

the award of attorney’s fee in view of the fact that the herein
complainants were compelled to litigate and thus, engage the
services of legal counsel for a contingent fee to enforce his rights
and interest under the law.

In actions for recovery of wages or where an employee was

forced to litigate and incur expenses to protect his rights and
interest, he is entitled to an award of attorney’s fees. (Building
Care Corp vs. NLRC, 268 SCRA 666) This award is justifiable
under Article 111 of the Labor Code, Section 8, Rule VIII, Book III
of its Implementing Rules, and paragraph 7, Article 2208 of the
Civil Code.

PRAYER

WHEREFORE, in view of the foregoing reason, it is most

respectfully prayed of this Honorable Office that after proper
consideration of the issue involved, judgment be rendered and an
order be issued:

1. Declaring complainants to have been illegally dismissed;

2. Ordering respondents to pay complainants of their wage
differentials, 5 days service incentive leave pay and 13th
month pay differential; and
 3. Ordering respondents to pay moral and exemplary damages
plus payment of 10% attorney’s fee.
Complainants pray for such other relief and remedies which
this Honorable Office may deem most proper under the
premises.

IN WITNESS WHEREOF, I have hereunto set my hand

this December 2,2018 in Bacolod City, Philippines.

CHERRY ANN MARIE G. MARTIR

Complainants

SUBSCRIBED AND SWORN TO before me this December

2, 2018 in Bacolod City, Philippines by affiant known to me to
be the same person who executes and personally signed the
foregoing instrument before me and avowed under penalty of
law to the whole truth of the contents of said instrument.

RESPECTFULLY SUBMITTED.

Bacolod City, Philippines, December 6, 2018.

ATTY. CHERRY ANN MARIE MARTIR

Roll of Attorney’s No. 01287
IBP No. 124365 (01.15.2016) Bacolod City
PTR No. 1234567 (01. 15.2016) Bacolod City
MCLE Compliance No. IV- V-1122678-1/16/14

Counsel for the Complainants

ABASTILLAS & MARTIR LAW OFFICES

2nd
Floor, AGM Building
Carlos Hilado Street, Bacolod City, Philippines
Telefax: (034) 407-1111

COPY FURNISHED:

SUNCITY CORP
Respondents
KAM BUILDING, 17t Lacson Street
Bacolod City

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

WE, PRECIOSO E. DIMAUHAW and BERTA D.

MASAGANA , all of legal age, single, Filipino and residents of
Bonita Compound, San Juan Street, Brgy. Banago, Bacolod City,
Negros Occidental, after having been duly sworn to in accordance
with law, do hereby depose and state:

1. That we are the complainants in the above –entitled

case;
2. That we have caused the preparation and filing of
the foregoing Position Paper;
3. That we have read the contents of this position
paper thoroughly and that we understood the same
and all the allegations contained therein are true
and correct to the best of our personal knowledge
and belief and/or based on authentic
records/documents.
4. That we hereby certify that we have not commenced
any other action or complaint involving the same
issues in the Supreme Court, Court of Appeals or
different Division thereof or any tribunal or agency.
5. That to the best of our knowledge, there is no such
other action or proceeding pending in the said Court
or other tribunal or agency; and
6. That in the event that a similar action or proceeding
has been filed or is pending before the Supreme
 Court, the Court of Appeals or different Divisions
thereof, we do hereby undertake to promptly inform
the said Court’s or other tribunal or agency of that
fact within five (5) dats therefrom.

IN WITNESS WHEREOF, we have hereunto set our

signature this December 6th, 2018 at Bacolod City,
Philippines.

AFFIANTS

RIZALEA DONOSO RICHARD DUMAT-

OL
Tin No.-927947 Tin No.- 826707

MARK TORALBA JONATHAN

NUNEZ
Tin No.-173970 Tin No.-293770

ALEX GARCIA
Tin No.-134242