Republic of the Philippines

COURT OF APPEALS
Manila

JONATHAN S. TACWIGAN, CA GR SP ___________

Petitioner

-versus-

MARILYN PECUA
Respondent.

x ------------------------------------------------------- x

COMMENT
(to the PETITION FOR REVIEW)

C omes now, the RESPONDENT, to this Honorable Court with this

COMMENT to the Petition for Review filed by the Petitioner and for this purpose
most respectfully states and avers:

PREFATORY STATEMENT

Well-entrenched is the rule that a public office is a public trust. Public

officers and employees are duty bound to serve with the highest degree of
responsibility, integrity, loyalty, and efficiency and shall remain accountable to
the people.1

Under the Fire Protection Code, a Fire Extinguisher must be present in

all establishments before the issuance of a Fire Safety Inspection Permit or
Certificate.

STATEMENT OF THE FACTS AND OF THE CASE

1. The following are the statement of facts while the case is still
2.
3. On August 10, 2010, the Complainant filed a complaint affidavit2 for an
administrative case against the respondent or herein petitioner,
Jonathan Tacwigan, before the CSC-CAR Baguio City. Attached in the

1 \---!e-library! 6.0 Philippines Copyright © 2000 by Sony Valdez---/

([2001V190] DAVID DE GUZMAN, complainant, vs. DEPUTY SHERIFF PAULO M. GATLABAYAN,

REGIONAL TRIAL COURT, ANTIPOLO CITY, RIZAL, respondent., A.M. No. P-99-1323, 2001 Feb 20, 3rd
Division)

2
Annex 1 of this Comment
 Affidavit complaint is the Fire Safety Inspection Certificate issued by the
Office of the Fire Marshal of Tabuk City, Kalinga and the Joint Counter
Affidavit of Jonathan Tacwigan and Lucita Tacwigan in the case for
Estafa and Grave Oral Defamation then pedning for preliminary
investigation before the Provincial Prosecution Office of Tabuk City,
Kalinga.

4. On October 6, 2010, petitioner filed a comment to the said affidavit

complaint in compliance with the order of the CSC-CAR dated August 19,
2010.

5. Thereafter, an order dated December 20, 2010 was issued setting the
preliminary investigation of the case to January 19, 2011 at 3:00 in the
afternoon;

6. During the hearing on January 19, 2011, herein petitioner appeared.

Also present during said hearing were the complainant Marilyn Pecua,
Sany Garce Bayangan and Noel Bayangan.

7. Because of the conflicting claim of the parties during the hearing on

January 19, 2011, another preliminary investigation was set on February
21, 2011 at 3:00 in the afternoon as requested by the layer of herein
petitioner;

8. On February 21, 2011, both the complainant and the person complained
of appeared. The person complained of is with his counsel, Atty. Pedro
Lazo and his spouse, Lucita Tacwigan. The complainant, on the other
hand, was accompanied by Sany Grace Bayangan, Noel Bayangan,
Josephine Pecua, and Lilia Lugtu;

9. On April 11, 2011, the CSC-CAR received additional pieces of

documentary evidence coming from the private complainant which are
the sworn statements of Agapito Mabayyac, Lady Alejandrino and Lilia
Lugtu.

10. During the hearing on April 25, 2011, the following person
appeared: Marilyn Pecua, Frederick Pecua, Jenny Claire Pecua, Dondon
Gumpad, Thelma De Guzman

11. After the preliminary investigation, CSC-CAR issued a Notice of

Formal Charge dated October 10, 2011 against the petitioner, Jonathan
Tacwigan, finding a prima facie case against him and formally charging
him with Willful Failure to Pay Just Debts, Conduct Prejudicial to the
Best Interest of the Service, and Violation of Section 52 (9), Rule IV of the
Uniform Rules on Administrative Cases in the Civil Service. Accordingly,
he was required to file an answer, in writing and under oath;

12. Thus, on November 08, 2011, the petitioner filed his Answer with
Affirmative Defenses.
13. A Pre-Hearing Conference was then conducted on February 21,
2012 at 2:00 in the afternoon at the CSC-CAR;
14. In the pre-hearing conference, the parties were directed to submit
their position papers, hence, complainant or herein respondent
 submitted her Position Paper3 and Formal Offer of Exhibits4 on March
27, 2012;
15. On June 5, 2012, the CSC-CAR Baguio City rendered it decision
finding Jonathan Tacwigan guilty of Conduct Prejudicial to the Best
Interest of the Service and was accordingly meted the penalty of nine (9)
months suspension without pay;
16. The Respondent-Appellant filed his Motion for Reconsideration of
the above decision but the same was likewise denied by the Honorable
CSC-CAR for lack of merit;
17. As such, Respondent-Appellant filed a Notice of Appeal and
Memorandum of Appeal to the National Civil Service Commission,
Quezon City;
18.

19. This case arose from the transaction between herein parties
wherein respondent, Fireman Jonathan Tacwigan, inspected the
business establishment of the complainant on January 20, 2010 and
subsequently required the complainant to have a fire extinguisher before
the issuance of a Fire Protection Permit. Thereafter, Respondent offered
the complainant and her husband to procure fire extinguishers for the
latter, hence, the complainant handed him an amount of Three
Thousand Pesos (P 3,000.00) as advance payment for the three (3)
extinguishers that they have ordered from the respondent;
20. The following day, the Fire Safety Inspection Certificate5 was
issued by the Bureau of Fire Protection even without the required Fire
Extinguisher. Up to this date, the Fire Extinguishers ordered and fully
paid on February 24, 2010 to Respondent was not yet delivered;
21. Demandswere given for the Respondent to deliver the Fire
Extinguishers but he ignored the complainant so the latter together with
four (4) companions went to the City Fire Station to make an inquiry and
report as to the undelivered Fire Extinguishers and the issuance of the
Fire Protection Certificate without the required fire extinguishers.
However, the Head of Office, F/Ins. Arvin Aquino told the complainant
that according to Fireman Tacwigan, he issued the Fire Protection
Certificate because she is his concubine. The formal demand letter6 was
sent on May 24, 2010;
22. Complainant-Appellant then filed an administrative complaint
against Jonathan Tacwigan before the Civil Service Commission
accompanied with the testimony of witnesses;
23. A formal complaint was then charged against the Respondent and
was required by the CSC-CAR Baguio City to file his answer, hence, the
filing of his Answer with Affirmative Defenses;
24. As a response to the complaint, Respondent filed his Answer with
Affirmative Defenses. Hence, a Pre-Hearing Conference was conducted on
February 21, 2012 at 2:00 in the afternoon;
25. In the pre-hearing conference, the parties were directed to submit
their position papers, hence, complainant submitted her Position Paper7
and Formal Offer of Exhibits8on March 27, 2012;
26. Also included in the Formal Charge is the P 10,000 indebtedness
of the Appellant to the Appellee and the domes tent worth P 4,000.00
3
Exhibit C
4
Exhibit D
5
Exhibit A
6
Exhibit B
7
Exhibit C
8
Exhibit D
 which was obtained by the former to the establishment of the latter but
up to this date, no payment was made despite the repeated oral
demands;
27. On June 5, 2012, the CSC-CAR Baguio City rendered it decision
finding Jonathan Tacwigan guilty of Conduct Prejudicial to the Best
Interest of the Service and was accordingly meted the penalty of nine (9)
months suspension without pay;
28. The Respondent-Appellant filed his Motion for Reconsideration of
the above decision but the same was likewise denied by the Honorable
CSC-CAR for lack of merit;
29. As such, Respondent-Appellant filed a Notice of Appeal and
Memorandum of Appeal to the National Civil Service Commission,
Quezon City and the Complainant-Appellee has received the same on
October 4, 2012 via registered mail.

ISSUES:

WHETHER OR NOT THERE IS FORUM SHOPPING IN THE CASE AT BAR AS

INSISTED BY THE RESPONDENT-APPELLANT?

WHETHER OR NOT RESPONDENT COULD BE HELD ADMINISTRATIVELY

LIABLE AS CHARGED?

WHETHER OR NOT RESPONDENT DESERVES THE PENALTY OF NINE (9)

MONTHS SUSPENSION ONLY?

DISCUSSIONS/ARGUMENTS

WHETHER OR NOT THERE IS FORUM SHOPPING IN THE CASE AT BAR AS

INSISTED BY THE RESPONDENT-APPELLANT?

The Respondent-Appellee insists on the violation of Forum Shopping by

the complainant which has no basis in fact and in law. As has been correctly
resolved by the Honorable Office of CSC-CAR, the Estafa case filed by the
complainant with the Provincial Prosecutor’s Office of Tabuk City, Kalinga
which is criminal in nature is different from the case at bar which was one for
an administrative case because they are two different actions and neither
resolution of the same would have the effect of res judicata.

However, the Respondent-Appellee reiterated that the case of Estafa is

in the nature of an administrative case because it was considered and resolved
at the Administrative Level. This humble representation begs to disagree with
the respondent. It must be noted that Swindling (Estafa) is punishable under
the Revised Penal Code of the Philippines particularly Art. 315 thereof, and a
violation of the provisions of the said Revised Penal Code is considered a
criminal offense which shall be tried first at the Prosecution’s Office for
Preliminary Investigation before filing an information to the court having
jurisdiction over the said criminal case. To determine the existence of probable
cause, a preliminary investigation is conducted. A preliminary investigation is
an inquiry or proceeding to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial.9

The Estafa case as referred to by the Respondent was dismissed at the

Prosecutor’s Office was because the prosecutors did not find probable cause to
hold the respondent for trial. A portion of the resolution of the Provincial
Prosecution Office of Tabuk, Kalinga dated July 29, 2010 is read as follows:

“As to complaint for Estafa against Jonathan Tacwigan, we find no

probable cause to hold him for trial. xxx xxx xxx
As such it cannot be the basis of a criminal prosecution for the
crime of Estafa. Thus, it must necessarily fall at this early stage of the
proceedings.”

It is very crystal clear from the Resolution that the case of Estafa is
CRIMINAL in nature although the Prosecutors did not find any basis to
continue the criminal case. It would, therefore, be absurd to classify the Estafa
Case as one of administrative in character as being put by the respondent in
the instant case just to escape the long arms of the law by looking for some
excuses.

Moreover, the Respondent was caught in his own trap because he,
himself is admitting and declaring that the Esafa case is CRIMINAL in nature
in his statement in his Motion for Reconsideration10 particularly page 4,
paragraph 9 thereof, he straightly mentioned:

“ Just like in the criminal complaint, complainant reiterated with this

Honorable Office the alleged transaction on the fire extinguisher-but with some
surprising and magical disclosures.”

That being the case, it is very clear and established that the Estafa Case
is one of a Criminal in nature and this instant case is administrative, hence,
there is therefore NO VIOLATION OF FORUM SHOPPING in the case at bar
because there is no doubt that criminal and administrative cases are separate
and distinct from each other. In the criminal complaint for Estafa, the
complainant is acting as a witness and a private individual who has been
damaged because of the deceit employed by the respondent, thus praying for
the conviction of imprisonment of the latter as punishment for the crime
committed and for damages. On the other hand, the administrative complaint
was filed against the respondent as sanction for his misconduct and violation
of the Civil Service Law where herein complainant is just acting in her capacity
as a witness for the State with prayer that he be removed from service because
the Bureau or Fire Protection (BFP) does not deserve a member who uses their

ERNESTO A. TABUJARA III and CHRISTINE S. DAYRIT,Petitioners,versus

9ATTY.

PEOPLE OF THE PHILIPPINES and DAISY AFABLE, Respondents., G.R. No.

175162, 2008 Oct 29, 3rd Division
10
Exhibit F
uniform to deceive and piss off innocent persons. The Supreme Court has
stated in the case of Velasquez et. al Vs. Hernandez11, that:

“The most important factor in determining the existence of forum shopping

is the vexation caused the courts and parties-litigants by a party who asks
different courts to rule on the same or related causes or grant the same or
substantially the same reliefs. A party, however, cannot be said to have sought
to improve his chances of obtaining a favorable decision or action where no
unfavorable decision has ever been rendered against him in any of the cases he
has brought before the courts.

In not a few cases, this Court has laid down the yardstick to determine
whether a party violated the rule against forum shopping as where the elements
of litispendentia are present or where a final judgment in one case will amount to
res judicata in the other. Stated differently, there must be between the two
cases (a) identity of parties; (b) identity of rights asserted and reliefs prayed
for, the relief being founded on the same facts; and (c) that the identity
of the two preceding particulars is such that any judgment rendered in
the other action will, regardless of which party is successful, amount to
res judicata in the action under consideration.

It is significant to note that the action filed before the CSC-CAR is

administrative in nature, dealing as it does with the proper administrative
liability, if any, which may have been incurred by respondent for the commission
of the acts complained of. In stark contrast, the case filed before the Office of the
Deputy Ombudsman for Luzon, which incidentally was not initiated by herein
petitioners but by the complainant teachers, deals with the criminal
accountability of the respondent for violation of the Anti-Graft and Corrupt
Practices Act. Unmistakably, the rule on forum shopping would find no
proper application since the two cases although based on the same
essential facts and circumstances do not raise identical causes of action
and issues.

The dismissal of the complaint for estafa before the Prosecutor’s Office
does not close any administrative conviction against the respondent. The
highest court of the land likewise decided in one case distinguishing an
administrative from a criminal case, saying that:

“Administrative proceedings are governed by the "substantial evidence

rule." A finding of guilt in an administrative case would have to be sustained for
as long as it is supported by substantial evidence that the respondent has
committed the acts stated in the complaint or formal charge. As defined,
substantial evidence is such relevant evidence as a reasonable mind may accept
as adequate to support a conclusion. This is different from the quantum of proof

TOMAS G. VELASQUEZ, Officer-In-Charge, Office of the School

11

Superintendent, DECS Division of Abra; MARIETTA BERSALONA,

Chairperson, DECS - Fact RUPERTO, JOAQUIN PILIEN and LUZ CURBI,
Members, DECS Fact Finding Committee, Petitioners, vs. .HELEN B.
HERNANDEZ, Respondent., G.R. No. 150732, 2004 Aug 31, En Banc
required in criminal proceedings which necessitates a finding of guilt of the
accused beyond reasonable doubt. The Ombudsman, in ordering the
withdrawal of the criminal complaints against respondent was simply
saying that there is no evidence sufficient to establish her guilt beyond
reasonable doubt which is a condition sine qua non for conviction. Ergo,
the dismissal of the criminal case will not foreclose administrative
action against respondent.”12

As enshrined in the Constitution, "public office is a public trust. Public

officers must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency x xx. The Respondent is a
member of the Philippine National Police and which was given a public trust
because he is occupying a position in the public office. However, his position as
a public officer must not give him any license to destroy or discredit the trust
which the people has reposed on him. As being pointed out by the Supreme
Court in the case of Badiola vs.CA13:

“Indeed, the well established rule is that the dismissal of the criminal case
involving the same set of facts does not necessarily foreclose the continuation of
the administrative action or carry with it relief from administrative liability. The
case of Tecson v. Sandiganbayan provides elucidation on this very point, thus:

[I]t is a basic principle of the law on public officers that a public official or
employee is under a three-fold responsibility for violation of duty or for a
wrongful act or omission. This simply means that a public officer may be held
civilly, criminally, and administratively liable for a wrongful doing. Thus, if such
violation or wrongful act results in damages to an individual, the public officer
may be held civilly liable to reimburse the injured party. If the law violated
attaches a penal sanction, the erring officer may be punished criminally. Finally,
such violation may also lead to suspension, removal from office, or other
administrative sanctions. This administrative liability is separate and
distinct from the penal and civil liabilities.

12
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([2004V954E] TOMAS G. VELASQUEZ, Officer-In-Charge, Office of the School
Superintendent, DECS Division of Abra; MARIETTA BERSALONA, Chairperson,
DECS - Fact RUPERTO, JOAQUIN PILIEN and LUZ CURBI, Members, DECS Fact
Finding Committee, Petitioners, vs. .HELEN B. HERNANDEZ, Respondent.,
G.R. No. 150732, 2004 Aug 31, En Banc)

\---!e-library! 6.0 Philippines Copyright © 2000 by Sony Valdez---/ ([2008V459]

13

REBECCA E. BADIOLA, Petitioner, versus HON. COURT OF APPEALS, THE

OFFICE OF THE OMBUDSMAN, and LERMA G. ABESAMIS, Respondents., G.R.
No. 170691, 2008 Apr 23, 3rd Division)
 Furthermore, a finding of guilt in an administrative case may be sustained
for as long as it is supported by substantial evidence that the respondent has
committed the acts charged. Substantial evidence is defined as that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion. On the other hand, criminal proceedings require a more stringent
quantum of proof, which is proof beyond reasonable doubt. As defined under the
law, proof beyond reasonable doubt does not mean such a degree of proof as,
excluding the possibility of error, produces absolute certainty. Moral certainty
only is required, or that degree of proof which produces conviction in an
unprejudiced mind. Hence, when Badiola was absolved from criminal liability, it
simply meant that her guilt on the offenses she was charged with was not
proven beyond reasonable doubt. This fact does not and should not in any way
bind the outcome of the administrative case, which requires only substantial
evidence to prove her administrative culpability.”

In fact, it is the Respondent-Appellee who is exercising a Forum

Shopping in the case at bar because a case for Falsification [Art. 172 in relation
to Art. 171 (4) and Art. 183 of the Revised Penal Code] was filed by herein
respondent Jonathan Tacwigan against herein complainant Marilyn Pecua
before the Office of the City Prosecutor, Baguio City for alleged false
certification when the latter signed a Verification and Certification against
Forum Shopping in this administrative complaint against Tacwigan while a
criminal complaint for Estafa and Grave Oral Defamation was filed before the
KalingaProvncial Prosecutor’s Office. A copy of the complaint is attached hereto
as Annex “G”. However, the Office of the City Prosecutor, Baguio City
DISMISSED the said complaint for LACK OF PROBABALE CAUSE. A portion of
the decision14 is read as follows:

xxx xxx xxx. Aptly the issues raised in the criminal

cases filed by respondent Marilyn Pecua against Jonathan Tacwigan and
his wife are different from the issues to be resolved in the administrative
cases she filed against Jonathan, albeit they might have arisen from the
same incident. The criminal complaints were dismissed because the OPP-
Kalinga found insufficient evidence to indict Jonathan and his wife. In
administrative case, the CSC-CAR found cause to formally charge herein
complainant. Truly, it cannot be said that respondent already commenced
the administrative issues in the criminal complaint she filed before OPP-
Kalinga. It cannot also be said that she is reiterating the same criminal
liability of Jonathan and his wife before the Civil Service Commission,
CAR.

All told, we find nothing false or perjurious in the

verification/certification of the administrative complaint which Marilyn
Pecua filed before the CSC-CAR.

WHEREFORE in view of the foregoing, undersigned recommends

that the instant criminal complaint against MARILYN PECUA for

14
Exhibit H
 FALSIFICATION and PERJURY be dismissed for LACK OF PROBABLE
CAUSE.

WHETHER OR NOT RESPONDENT COULD BE HELD ADMINISTRATIVELY

LIABLE AS CHARGED?

The Respondent likewise incorrectly argued that the evidence adduced by the
complainant-appellee in the present case does not satisfy the basic
requirement of substantial evidence.

In administrative and quasi-judicial proceedings, only a quantum of

proof of substantial evidence is necessary to establish the case for or against a
party. Substantial evidence is more than a mere scintilla of evidence. It is that
amount of relevant evidence that a reasonable mind might accept as adequate to
support a conclusion, even if other minds, equally reasonable, might conceivably
opine otherwise.15

With the foregoing, the appellee humbly submits that she had properly
laid evidence to fall under the substantial evidence as above-defined,
warranting the conviction of the respondent for grave misconduct and conduct
prejudicial to the best interest of the service.

a. It must be noted that this Administrative Case is between a lady and a

man who belongs to the strongest arm of the government, the PNP/BFP. This
lady who is a principal, a teacher and a model of the society comes to the
succor of this Honorable Office just to fight for her rights even as against a
powerful man of the society which only shows that there is no motive on her
part to fabricate lies against the appellant if the allegations are not true.
Appellee also has set aside the risk that may come to her way as a result of this
case. This would naturally bolster the strength of the complaint.

The Honorable Office of CSC-CAR in its decision in the instant case

mentioned that:

Anent the absence of any evidence proving payment of the fire

extinguishers, the private complainant sufficiently explained
during the hearings that because of the trust and confidence that
they (complainant and husband) have on the respondent, they did
not anymore require for an official receipt. Besides, it is natural for
the respondent not to be issuing a receipt for to do so would be

15
\---!e-library! 6.0 Philippines Copyright © 2000 by Sony Valdez---/ ([2009V183] LEODEGARIO R.
BASCOS, JR. and ELEAZAR B. PAGALILAUAN, Petitioners, versus ENGR. JOSE B. TAGANAHAN and OFFICE
OF THE OMBUDSMAN, Respondents., G.R. No. 180666, 2009 Feb 18, 3rd Division)
 tantamount to producing evidence against him.Hence, on this
score, this Office gives more weight to the positive testimony of the
complainant and her husband, as corroborated by their witnesses,
that indeed the respondent received the money as payment for the
fire extinguishers, yet failed or refused to deliver them, even
despite repeated demands from the complainant.”

I concur with the said decision. The instant case is Administrative in

nature, hence, the quantum of proof required is just a substantial evidence as
explained above. The allegations of the complainant-appellee and her husband
have been sufficiently explained during the hearings of the Administrative Case
and were in fact corroborated by the affidavit of their witnesses. The witnesses
even went all the way to Baguio City from Tabuk City which is a ten (10) hour
trip by bus in order to testify against the Appellant.

In the affidavits of witnesses AgapitoMabayyac16 and Lady Alejandrino17,

both witnesses divulged that they accompanied the complainant in going to the
office of the Appellant (Tabuk City Fire Station). They personally heard the
respondent’s answer when he was confronted regarding the money he received
and the fire extinguisher he has supposed to deliver to qout:

“APAY DAYTOY LANG AYA TI INLAK KENKA? ADADU PAY AH!!!” (Is this
the only money I got from you? It is more than that!!!)”

The words which came from the own mouth of the appellant is an
admission and should therefore not be given a doubt that he indeed committed
acts as imputed. This is a declaration against his own interest, a matter which
a normal person would not do if in case the complaint against him is false.
Moreover, it was not rebutted or denied by the respondent so it is more safe to
conclude that there as indeed an incident personally witnesses by the said
witnesses, thereby making their statement not a hearsay.

b. It has been indirectly admitted by the Respondent that he has indeed

received an amount of money from the Complainant when he did not deny the
allegation of complainant’s husband as per the resolution of the Regional
Prosecution Office dated October 29, 2010, to wit:

“ xxx xxx xxx Although the existence of the

text message was belatedly denied in general terms during this
appeal, still their contents were confirmed or corroborated to a
certain extent by no less than the complainant-appellant’s
husband when he alleged, among others, that the P 2,000.00 was
given to tricycle driver, as per order of Jonathan Tacwigan. Such
allegation of complainant-appellant’s husband was not denied.
Xxx xxx”

16
Annex I
17
Annex J
 It has also been decided by the Provincial Prosecution Office of
Kalinga that:

“In essence, Jonathan Tacwigan asserts that the truth of the

matter was that there was an amount which was texted to
complainant not in connection with the fire extinguishers but in
connection with his relationship with the latter.”
In logical analysis, the admission of the existence of the amount texted to
the appellee tantamount also to admission that there was indeed an amount of
money received by the Respondent from the complainant. However, it is
expected that he will make some excuses just to release him of the culpability
by inventing some stories to the extent that he is already destroying the
reputation of other people like the complainant in the case at bar. It is not
normal for a man, especially for a professional and a law enforcer which is
looked upon by the people as a man of reputation, to be admitting and
announcing to the whole world that he has been receiving money from a
certain woman because they are concubines or that they have amorous
relationship. It is too cheap for a fire man or an officer of the law extracting a
small amount of money from his lover. As opposed to the real flow of life, the
man should be the one giving money to his lover and not the one asking money
from a woman.

The text messages shown by the respondent to prove his illicit relations
with the complainant is only a single setting which is on January 23, 2012. If
he should have shown the same context of messages which is texted on
another date other than January 23-24, 2012 then there is no doubt that they
have relationship. To the contrary, the respondent has shown another text
messages from the complainant which is the subject of the Criminal Case for
Grave Threats against the complainant before the Municipal Trial Court in
Cities of Tabuk City, Kalinga. A portion of the decision18 is read, to wit:

“ The information alleged:

That sometime on February 24, 2010 and March 25,

2010 at Tabuk, Kalinga and within the jurisdiction of this
Honorable Court, the said accused did, the and there willfully,
unlawfully and feloniously threaten a certain Jonathan
Tacwiganwoth the infliction upon the latter’s persons of a wrong
amounting to a crime of homicide by texting him twice saying, ‘AS
YOU MIGHT BE THREATENING ME MAY I REMIND YOU DO NOT
BLACKMAIL ME JONG AS I CAN JUST ORDER MY BOYFRIEND
TO ERASE YOU FROM THE FACE OF THE WORLD” and “IT IS
YOU WHO SHOULD KEEP STILL AS YOUR TONGUE MIGHT BE
REMOVED WITHOUT KNOWING IT”, respectively, said threats not
being made subject to any condition.

Xxx xxx xxx

18
ExhibitK
 Though Pecua admitted that the cellphone belongs to
her business enterprise, she claimed that she is not the only one
who has access to it. To be sure this kind of evidence needs to be
authenticated by the service provider, such as Globe or Smart as
the case may be. This is what is wanting here.

Xxx xxx xxx

Also, we have no witness pointing to MarlynPecua as

the sender of the message. What we only have here is the
presumption that she sent it, she having admitted the ownership
thereof. But anybody can pick up any cell phone and send
messages. Even though MarlynPecua admitted that the cellphone
belongs to their establishment, what we only have is a
presumption. But the accused could not be convicted on mere
presumptions.

Xxx xxx It is clear from the two

threatening messages in issue that these were in response to
previous messages. Xxx xxx xxx”

The above decision can also be applied to the alleged text messages
interchanged by the complainant and the respondent on the wee hours of
January 23-24, 2012. There is no proof that it was the complainant who really
texted the said conversations and that the authenticity of the text messages
were not proven through Electronic Evidence. A scripted conversation can
always be invented.

c. Assumingthat the appellee and the appellant has an illicit relations as

has been repeatedly insisted by the latter, the appellant shall then be liable
again for another act of GROSS MISCONDUCT due to his IMMORAL ACT in
having an affair with a woman other than his legal wife. It is also an unethical
conduct to admit in public, under oath and even in official transactions that he
has a mistress. Firstly, when the Appellee served the demand letter to the
Appellee to their office, his superior officer said that appellant issued the
Certificate of Fire Protection in favor of the appellee because they have illicit
relationship. Secondly, appellant countered in his answers in the Estafa and
Grave Oral Defamation cases before the PPO-Kalinga that he procured money
from the appellee because of their relationship. Thirdly, he admitted in open
court during his testimony for the case of Grave Threats before the MTCC-
Tabuk City that they are likewise lovers. Lastly, the appellant is still insisting
in this administrative case that they have an affair in order just to escape any
sanction that may be imposed on him. Such unethical conduct is aggravated
by the fact that he has destroyed the reputation of an innocent lady occupying
a high position in the Department of Education as a School Principal. Likewise,
the Appellant is very insensitive with the feelings of the husband of the
Appellee when he is announcing to everybody that he and the appellee has a
relationship.

d. As to the P 10,000.00 indebtedness of the Respondent Appellant to the

Complainant which is up to this date is not yet paid, respondent has
repeatedly alleged in his pleadings that he do not owe the complainant such
amount because accordingly, it was just an afterthought for the reason that it
was not mentioned in complainant-appellee’s complaint, in the demand letter,
and on the confrontation at the Barangay for Unjust Vexation complaint
against the appellant.

The CSC-CAR has stated in its decision dated June 5, 2012, to wit:

“Apropos the amount of Ten Thousand Pesos (P 10,000.00) which

was included in the formal charge, it must be stated that while
said amount was not stated in the complaint, it was raised by the
complainant in the course of the preliminary investigation. Hence,
it was included in the formal charge,”

Verily, the P 10,000.00 indebtedness and the domes tent worth P 4,000
obtained by the appellant may not have been alleged in the face of the
complaint-affidavit19 but such complaint particularly paragraph 4 thereof
mentioned about a Demand Letter (Annex B of this Memorandum) dated May
24, 2010, a copy of which was attached to the said Demand Letter. The said
Demand Letter is reminding the Appellee of the amount of P 10,000.00 he
borrowed from the Appellee and her husband. Moreover, the same Demand
Letter also stated as addendum the Domes Tent in the amount of P 4,000.00
which Appellant has acquired from the Merchandise Store of the
Appellant.Consequently, the debts were discussed in the proceedings or
hearings of the case particularly during the Preliminary Investigation. Besides,
it has been pointed out by the Appellant in his memorandum that
complainant-appellee has mentioned the indebtedness on P 10,000.00 in
appellee’s Affidavit complaint with the Provincial Prosecution Office (PPO).
Unfortunately, the PPO did not resolve the allegation of indebtedness because
they may have considered the same to be civil in nature. Complainant-Appellee
has also alleged the said indebtedness in her Appeal/Petition20 dated August
23, 2012 particularly page 3, third (3rd) paragraph thereof.

As to the unconsummated transaction at the Barangay level for Unjust

Vexation against Jonathan Tacwigan and LucitaTacwigan, the issue therein is
different from the issue of fire extinguishers, P 10,000 debtand the domes tent
worth P 4,000.00 in this instant case that is why it is not brought out during
the meetings. Besides, the subject of the Unjust Vexation case before the
barangay is far different from the issue in this administrative case.

e. Absence the acknowledgement receipt of the amount alleged in the

complaint in the formal charge, this would fall the defense of the appellant as

19
Annex A for Appellant’s Memorandum on Appeal
20
Exhibit 4 for the Appellant’s Memorandum,
expected. However, the credibility of the appellee being a principal coupled by
the corroborating affidavit of witnesses, this line of defense does not hold
water. This is so simply because transaction such as those giving of cash to
facilitate the request of a government officer soliciting for a favor put into peril
the payor and the payee as well. Such explains why there was no receipt issued
by the appellant when he received the amounts and items charged against him
because he is very much aware that the receipt he may issue will be used
against him. The appellee, on the other hand, did not require the appellant to
issue a receipt because of the trust they give to the appellant.

f. The affidavit of Lilia Lugtu21 would clearly show the propensity of the
appellant to induce other people, get money from them and run away from his
obligations. There is already a pattern and a history of the respondent to
commit such misdeeds as charged. The allegations of Lilia Lugtu with respect
to an amount of money borrowed by the respondent from Lilia Lugtu was
already decided by theMTCC, Tabuk City, Kalinga and in fact, such decision
was favorable to the said Lilia Lugtu. Unfortunately, the Honorable MTCC
believed in the dishonesty made by the respondent when he alleged that a
Caliber handgun was given as collateral without any proof of such delivery of a
handgun as collateral versus the checks that were made as collateral and are
expressly written in the acknowledgment receipts. This is the reason why the
case is still pending on Appeal before the higher courts. The allegation of the
giving of a handgun as collateral without any proof of such delivery is a
complete LIE and DISHONESTY.

Assuming for the sake of argument, without however admitting it, that a
handgun was indeed given as collateral for a loan, is it not again a violation of
the Administrative Rules and Regulations which tantamount to Grave
Misconduct and Conduct prejudicial to the best interest of the service the
giving of a handgun to a person who is not licensed to carry firearm? Besides,
the act of conveying a handgun to an unlicensed carrier promotes criminalities
in the society. That is why there is a crime of Illegal Possession of Firearms
because our laws do not promote any individual handling a gun without any
authority or permit to carry a firearm.

g. There are also these affidavits of witnesses Juana Palangeo22 and Beatriz
Regacho23 both attesting to the fact that appellant went to them and transacted
with them involving the same fire extinguisher offered by him for sale in order
that their establishments may be issued a Fire Protection Permit. This only
shows that appellee is not only the victim of the appellant but also for some
other persons. Indeed, appellant attached in his answer some affidavits of his
witnesses that he has not extracted money from them, however, it does not
necessarily warrant that he has done the same good thing to the appellee and
his other victims;

21
Exhibit L
22
Exhibit M
23
Exhibit N
h. The delivery of the Fire Safety Inspection Certificate to the complainant
does not warrant the delivery of the Fire Extinguishers. The complainant-
appellee need not demand the delivery of the fire extinguishers because the
respondent knows very well of the rules to which he is in charge of that fire
extinguishers are required before Fire Safety Inspection Certificate be issued.
In the first place, the respondent should have not issued the said Fire Safety
Inspection Certificate if the required Fire Extinguishers are not present in the
premises of the complainant. Such issuance without some of the pre-requisite
is a violation of the Fire Code of the Philippines which respondent should again
be liable and answer.

i. With all the foregoing, more than substantial evidence was established
by the appellee against the appellant. The quantum of proof or evidence
required in administrative case is merely substantial. It is not required of the
complainant to present every piece of evidence which would constitute proof
beyond reasonable doubt as required in criminal cases or preponderance of
evidence as required in civil cases. It would suffice that complainant had
shown a color of veracity to the complainant which would convince a common
man to say that yes indeed, the respondent had committed misconduct or
conduct prejudicial to the best interest of the service.

WHETHER OR NOT RESPONDENT DESERVES THE PENALTY OF NINE (9)

MONTHS SUSPENSION ONLY?

The portion of the decision of CSC-CAR is read as follows:

“Guided by the factual back drop of the instant case, and applying
the law and jurisprudence obtaining thereto, we find that the acts
committed by the herein respondent falls under the administrative
offense of Conduct Prejudicial to the Best Interest of the Service. Under
Rule 10, Section 46 (B.8) of the Revised Rules on Administrative Cases in
the Civil Service, Conduct Prejudicial to the Best Interest of the Service is
punishable by six (6) months and one (1) day to one year for the first
offense and dismissal for the second offense.

Xxx xxx xxx

WHEREFORE, with all the foregoing, Jonathan Tacwigan, fireman

of the Tabuk City Fire Station Kalinga, is hereby found guilty of Conduct
Prejudicial to the Best Interest of the Service. Accordingly, he is meted
the penalty of nine (9) months suspension without pay.”

It is my humble opinion that Fireman Jonathan Tacwigan should be

sanctioned NOT only with nine (9) months suspension. He does not deserve a
light penalty of suspension only but deserves the penalty of DISMISSAL.

Under Rule 10, Section 48 (B.8) of the Revised Rules on Administrative

Cases in the Civil Service, Conduct Prejudicial to the Best Interest of the
Service is punishable by six (6) months and one (1) day to one year for the first
offense and dismissal for the second offense. Please take notice that his act of
extracting money from the complainant so that he will deliver fire extinguishers
but up to this date, no fire extinguishers has been delivered, is just one of the
series of acts in violation of the Administrative Rules and Regulations made by
the respondent which may be the basis of saying that this is his FIRST
OFFENSE. The Honorable Office of CSC-CAR has failed to consider the
affidavits of BEATRIZ REGACHO24 and JUANA PALANGEO25 who were also
victims of the infractions and dishonesty of the respondent.

The respondent-appellant cannot again argue that the amount of Two

Thousand Pesos (P 2,000.00) he received from Beatrice Regacho was not
because of the fire extinguisher transaction but because of their amorous
relationship. His transaction with PALANGEO is considered his SECOND
OFFENSE.

As to his transaction with Juana Palangeo, although he was frustrated in

exacting money from the said Palangeo, it is still considered a violation of the
Civil Service Rules and Regulations because he attempted to ask money from a
private person but for unknown reason, he issued the Fire Permit even without
the required Fire extinguisher. This transaction will be his THIRD OFFENSE.

With all the foregoing facts and circumstances, he should not only be
meted the penalty of nine (9) months suspension without pay but should be
dismissed from service because he did not only commit the Conduct Prejudicial
to the best interest of the service ones but has committed THRICE or even more
if only his victims will come out testify against him.

Moreover, his act of denying his transaction with the complainant-

appellee about the two fire extinguishers despite the testimony of the
complainant-appellee and her witnesses constitutes DISHONESTY.Dishonesty,
being in the nature of a grave offense, carries the extreme penalty of dismissal
from the service with forfeiture of retirement benefits except accrued leave
credits, and perpetual disqualification for reemployment in the government
service. This penalty is in accordance with Sections 52 and 58, Rule IV of the
Civil Service Commission Memorandum Circular No. 19, Series of 1999
(Revised Uniform Circular No. 19, Series of 1999 (Revised Uniform Rules On
Administrative Cases In The Civil Service), which provide:

“RULE IV. PENALTIES

Section 52.Classification of Offenses. — Administrative offenses with

corresponding penalties are classified into grave, less grave or light, depending
on their gravity or depravity and effects on the government service.

A. The following are grave offenses with their corresponding penalties:

1. Dishonesty

1st offense — Dismissal

24
Exhibit N
25
Exhibit M
 xxx xxx

Section 58.Administrative Disabilities Inherent in Certain Penalties.

a. The penalty of dismissal shall carry with it that of cancellation of eligibility,

forfeiture of retirement benefits, and the perpetual disqualification for
reemployment in the government service, unless otherwise provided in the
decision.”

WHEREFORE, it is respectfully prayed that, after appropriate

proceedings, this Honorable Office will DENY the appeal of the appellant but
instead impose the penalty of DISMISSAL for Fireman Jonathan Tacwigan.

Other reliefs just and equitable under the premises are likewise prayed
for.

October 17, 2012 inTabuk City, Kalinga, Philippines for Quezon City,
Philippines.

MARILYN PECUA
Complainant-Appellant
CTC No. 15679939
Issued on: Jan. 2, 2012
Issued at: Tabuk City, Kalinga

Republic of the Philippines )

Province of Kalinga ) s.c.
City of Tabuk )

SUBSCRIBED AND SWORN TO before me this 17th day of October 2012

in Tabuk City, Kalinga affiant exhibiting to me her Community Tax Certificate
with number written below his name above-written and his Identification Card
bearing the number 0304772 issued by the Professional Regulatory
Commission on December 11, 1998. I further certify that I had personally
examined the affiant, and I am convinced that the foregoing is executed freely
and voluntarily.

Doc No.____Page No. ___

Book No.____Series of 2012

Notice:

Civil Service Commission

Quezon City

Sir/Madam,

Greetings!Kindly submit the foregoing Memorandum upon receipt hereof without any
further oral argument.

MARILYN PECUA

Copy Furnished:

PEDRO R. LAZO
Counsel for the Respondent-Appellant
Suite 303, Jiao Bldg.
#02 Timog Avenue, Quezon City
Explanation:
A copy of this pleading was served to the above addressee thru registered mail due to
the distance involved and for lack of manpower. Thanks.

MARILYN PECUA

VERIFICATION and CERTIFICATION

REPUBLIC OF THE PHILIPPINES )

PROVINCE OF KALINGA )s.c.
CITY OF TABUK )

I,MARILYN PECUA, of legal age, Filipino citizen, married and with

residence atTabuk City, Kalinga, after having been duly sworn to in
accordance with law, depose and say:

1. That I am the complainant in the above entitled complaint.

2. That I have caused the preparation of the complaint.

3. That I have read the allegations therein contained, and that the
same are true and correct of my personal knowledge or based
on authentic records.

4. That I have not theretofore commenced any action or filed any

claim involving the same issues in any court, tribunal, or quasi-
judicial agency and, to the best of our knowledge, no such other
action or claim is pending therein; and if I thereafter learn that the
same or similar action or claim has been filed or is pending, we shall
report that fact within five (5) days therefrom to the office or court
wherein the aforesaid petition has been filed.

MARILYN PECUA
Affiant

SUBSCRIBED AND SWORN TO before me this 17th day of October

2012 inTabuk City, Kalinga, I certify further that the affiant understood the
effects hereof and that she freely executed the same.

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Series of 2012