Decision A.M No.

1 RTJ-87246

ANNEX 11 CERTIFIED TRUE COPY

WILFREDO V. LAPITAN
Division Clerk of Court
Third Division

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

LEBRON JAMES, A.M No. RTJ-87246

Complainant, Present:

PERALTA, J., Chairperson,

-versus- LEONEN,
REYES, A., JR.,
HERNANDO, and
CARANDANG, JJ.

BRIAN SCALABRINE, Promulgated:

Sheriff of the Regional Trial Court,
Cebu City, Branch 15,
Respondent. March 28, 2019

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DECISION

PERALTA, J.:

This is an administrative complaint for gross neglect of duty

amounting to bad faith filed by Lebron James (Complainant), with the
assistance of his counsel, against Sheriff Brian Scalabrine (respondent
sheriff), Sheriff of the Regional Trial Court (RTC), Cebu City, Branch 15,
relative to Civil Case No. 12345, entitled Stephen Curry v. Lebron James,
for collection of sum of money.

The antecedent facts of the instant administrative complaint are

recounted below.

On January 23, 2019, a case for collection of sum of money against

complainant before the Regional Trial Court (RTC) of Cebu City. In relation
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to this, respondent sheriff attempted to serve the summons to the

complainant on three separate occasions but failed due to complainant’s
absence in the premises. As such, respondent sheriff had the summons
received by Complainant’s houseboy Cardo Dalisay (Dalisay).

Hence, in a letter-complaint to the Office of the Court of

Administrator dated March 18, 2019, Complainant through counsel initiated
the instant administrative complaint charging respondent sheriff with gross
neglect of duty due to the alleged improper service of summons and the
subsequent incomplete return which led him to be declared in default in an
Order of Default issued by the Judge Demar Derozan of Regional Trial
Court of Cebu City, Branch 15 dated March 1, 2019.

Complainant contends that in an action strictly in personam,

personal service on the defendant is the preferred mode of service,
that is, by handing a copy of the summons to the defendant in person.
In the absence or when the service of summons upon the person of the
defendant is defective, the court acquires no jurisdiction over his
person, and a judgment rendered against him is null and void. The
import of this pronouncement is that jurisdiction over the defendant in
actions in personam can only be acquired either through a valid
service of summons or voluntary appearance.There was no personal
service of summons in this case. According to the complainant, the
copy of the summons was not given to him personally. Rather, it was
left with the houseboy Dalisay who is allegedly a minor. To prove
impossibility of personal service, there must be several attempts to
personally serve the summons, all of which resulted in failure. In the
case at bar, it is alleged that the Sheriff’s Return of Summons states
that the sheriff went to complainant’s house only once. This single,
failed attempt of personal service is not enough to warrant resort to
substituted service of summons.

In his Comment, respondent sheriff contends that if, for excusable

reasons, summons cannot be served within a reasonable period, then
substituted service can be resorted to. Respondent sheriff invites attention to
his Affidavit, explaining the circumstances around which substituted service
was resorted to. It was indicated therein, that on the morning of January 28,
2019, he went to the residence of complainant in Barangay Talamban, Cebu
City and due to the hardship in finding complainant’s address, he sought
assistance from the barangay tanods. With the aid of a barangay tanod, he
was able to find the residence. Upon arrival he was met by the
complainant’s houseboy Dalisay and was informed of the defendant’s
absence. Dalisay assured the respondent sheriff that he will inform the
complainant of his visit. Respondent sheriff was even asked to return in the
afternoon as the complainant will be home by then. Upon return in the
afternoon, respondent sheriff was not able to have the summons received as
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the complainant was still not home. Instead, Dalisay told him to come back
on Tuesday of the following week as per instruction of the complainant.

Tuesday of the following week, on February 5, 2019, respondent

sheriff went back to the complainant’s residence and was informed by the
houseboy Dalisay that the complainant went for a vacation in Palawan and
the date of return was not known to him. With this, respondent sheriff
decided to have the summons received by Dalisay, who assured respondent
sheriff that he will give the said court process to complainant after the
contents of said summons were explained to him by respondent sheriff.

On the very date, respondent sheriff made his Sheriff’s Return on the
substituted service of summons and filed before the Branch Clerk of Court
together with the Sheriff’s Report of Expenses reflecting the expenses
incurred by the sheriff in the execution of his duty together with its receipts
and the barangay certification of his visit for the purpose of establishing his
attempts on the personal service of summons on the said date.

The Office of the Court Administrator (OCA), through Deputy Court

Administrator Raul Bautista Villanueva, submitted a Memorandum dated
March 20, 2019, recommending as follows:

RECOMMENDATION: It is respectfully recommended for the

consideration of the Honorable Court that:

a. Respondent Sheriff Scalabrine be found GUILTY of

simple neglect of duty and be given a WARNING to be more
circumspect in the observance of due process as a repetition of
the same infraction shall be dealt with more severely; and

b. The charge of gross neglect of duty against

respondent sheriff Scalabrine is DISMISSED for lack of merit.

The Court adopts the findings and recommendations of the OCA.

There is no merit Complainant’s charge of gross neglect of duty

against respondent sheriff. Complainant’s basis for the charge of improper
service of summons are (1) improper substituted service, and (2) minority of
the person who received the summons. Both have been sufficiently negated.

In an action strictly in personam, personal service on the defendant is

the preferred mode of service, that is, by handing a copy of the summons to
the defendant in person. If defendant, for excusable reasons, cannot be
Decision A.M No.
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served with the summons within a reasonable period, then substituted

service can be resorted to. While substituted service of summons is
permitted, "it is extraordinary in character and in derogation of the usual
method of service". Hence, it must faithfully and strictly comply with the
prescribed requirements and circumstances authorized by the rules. Indeed,
"compliance with the rules regarding the service of summons is as much
important as the issue of due process of jurisdiction".

Substituted service is provided for by Section 7, Rule 14 of the

Revised Rules of Court, to wit:

Section 7. Substituted service. - If, for justifiable causes, the

defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a)
by leaving copies of the summons at the defendant's
residence with some person of suitable age and discretion
then residing therein, or (b) by leaving the copies at
defendants office or regular place of business with some
competent person in charge thereof.

We can break down this section into the following

requirements to effect a valid substituted service:

(1) Impossibility of Prompt Personal Service

The party relying on substituted service or the sheriff must

show that defendant cannot be served promptly or there is
impossibility of prompt service. Section 7, Rule 14 provides that the
plaintiff or the sheriff is given a "reasonable time" to serve the
summons to the defendant in person, but no specific time frame is
mentioned. 'Reasonable time' is defined as "so much time as is
necessary under the circumstances for a reasonably prudent and
diligent man to do, conveniently, what the contract or duty requires
that should be done, having regard for the rights and possibility of
loss, if any [,] to the other party". Under the Rules, the service of
summons has no set period. However, when the court, clerk of court,
or the plaintiff asks the sheriff to make the return of the summons and
the latter submits the return of summons, then the validity of the
summons lapses. The plaintiff may then ask for an alias summons if
the service of summons has failed. What then is a reasonable time for
the sheriff to effect a personal service in order to demonstrate
impossibility of prompt service? To the plaintiff, "reasonable time"
means no more than seven (7) days since an expeditious processing
of a complaint is what a plaintiff wants. To the sheriff, "reasonable
time" means 15 to 30 days because at the end of the month, it is a
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practice for the branch clerk of court to require the sheriff to submit a
return of the summons assigned to the sheriff for service. The
Sheriff's Return provides data to the Clerk of Court, which the clerk
uses in the Monthly Report of Cases to be submitted to the Office of
the Court Administrator within the first ten (10) days of the
succeeding month. Thus, one month from the issuance of summons
can be considered "reasonable time with regard to personal service on
the defendant".

Sheriffs are asked to discharge their duties on the service of

summons with due care, utmost diligence, and reasonable promptness
and speed so as not to prejudice the expeditious dispensation of
justice. Thus, they are enjoined to try their best efforts to accomplish
personal service on defendant. On the other hand, since the defendant
is expected to try to avoid and evade service of summons, the sheriff
must be resourceful, persevering, canny, and diligent in serving the
process on the defendant. For substituted service of summons to be
available, there must be several attempts by the sheriff to personally
serve the summons within a reasonable period [of one month] which
eventually resulted in failure to prove impossibility of prompt
service. "Several attempts" means at least three (3) tries, preferably
on at least two different dates. In addition, the sheriff must cite why
such efforts were unsuccessful. It is only then that impossibility of
service can be confirmed or accepted.

(2) Specific Details in the Return

The sheriff must describe in the Return of Summons the facts

and circumstances surrounding the attempted personal service. The
efforts made to find the defendant and the reasons behind the failure
must be clearly narrated in detail in the Return. The date and time of
the attempts on personal service, the inquiries made to locate the
defendant, the name/s of the occupants of the alleged residence or
house of defendant and all other acts done, though futile, to serve the
summons on defendant must be specified in the Return to justify
substituted service. The form on Sheriff's Return of Summons on
Substituted Service prescribed in the Handbook for Sheriffs
published by the Philippine Judicial Academy requires a narration of
the efforts made to find the defendant personally and the fact of
failure. Supreme Court Administrative Circular No. 5 dated
November 9, 1989 requires that impossibility of prompt service
should be shown by stating the efforts made to find the defendant
personally and the failure of such efforts, which should be made in
the proof of service.1
1
Manotoc v. Court of Appeals, G.R. No. 130974, [August 16, 2006], 530 PHIL
454-477
Decision A.M No.
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Thus, while substituted service of summons is permitted, "it is

extraordinary in character and in derogation of the usual method of service".
Hence, it must faithfully and strictly comply with the prescribed
requirements and circumstances authorized by the rules. Indeed,
"compliance with the rules regarding the service of summons is as much
important as the issue of due process of jurisdiction".2

Sheriffs play an important role in the administration of justice. As

agents of the law, high standards are expected of them. More importantly,
the conduct and behavior of every person connected with an office charged
with the dispensation of justice, from the presiding judge to the lowest clerk,
is circumscribed with a heavy burden of responsibility. His conduct, at all
times, must not only be characterized by propriety and decorum but must,
and above all else, be above suspicion.3

In the performance of their duties, officers of the court are deemed to

know what is inherently right and inherently wrong and are bound to
discharge such duties with prudence, caution and attention which careful
men usually exercise in the management of their affairs. As agents of the
law, sheriffs are called upon to discharge their functions with due care and
utmost diligence because, in serving the court's processes and implementing
its order, they cannot afford to err without affecting the integrity of their
office and the efficient administration of justice.4

As gleaned from the cited cases and from the Return of Service of
Summons as well as the Sheriff’s Return of Expenses of respondent sheriff
and his explanation, he is liable merely for simple neglect or dereliction of
duty. The circumstances surrounding the failure to personally serve the
summons cannot be considered substantial enough to support a finding of
gross negligence amounting to bad faith. It is evident that respondent Sheriff
made several attempts to personally serve the summons prior to resorting to
substituted service, which is a method of service provided for by law.
Accordingly, Sheriff Scalabrine is only guilty of simple neglect in the
discharge of his functions.

WHEREFORE, the administrative complaint for neglect of duty

against Sheriff Brian Scalabrine, Sheriff of the Regional Trial Court (RTC),
Cebu City, Branch 15, is DISMISSED for lack of merit. However, Sheriff

2
Collado-Lacorte v. Rabena, A.M. No. P-09-2665, [August 4, 2009], 612 PHIL
327-335
3
Llamado v. Ravelo, A.M. No. P-92-747 (Resolution), [October 16, 1997], 345
PHIL 842-853
4
Malmis v. Bungabong, A.M. No. P-03-1721, September 30, 2004, 439 SCRA 538, 541-
542
Decision A.M No.
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Brian Scalabrine is found GUILTY of simple negligence, for which he is

FINED in the amount of Two Thousand Pesos (₱2,000.00).

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

MARVIC M.V.F. LEONEN

Associate Justice

On leave
ANDRES B. REYES JR. RAMON PAUL L. HERNANDO
Associate Justice Associate Justice

ROSMARI D. CARANDAY
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been

reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

DIOSDADO M. PERALTA
Associate Justice
 Decision A.M No.
8 RTJ-87246

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson’s Attestation, I certify that the conclusions in the above
Decision has been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

LUCAS P. BERSAMIN

Acting Chief Justice

CERTIFIED TRUE COPY

WILFREDO V. LAPITAN
Division Clerk of Court
Third Division