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Republic of the Philippines
ENERGY R~GULATORY CO~M~SSION('"J
. San Miguel Avenue, Paslg City
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HECTOR A. ALEJANDRO II,
Complainant,
, ERC CASE NO. 2006-210CC
- versus MANILA ELECTRIC COMPANY
(MERALCO),
Respondent.
x-----------------------------~------------x
DECISION
Before Us is a complaint filed by Complainant Hector A. Alejandro II
against Respondent Manila Electric Company (MERALCO), disputing the
latter's allegations that he provided electricity to a certain Mrs. Dolores
Veloso through a "flying connection" without Respondent's consent.
A perusal of the records of this case shows that the instant
Complaint arose from the following factual background:
Complainant Hector A. Alejandro II occupies the house located at
No. 8 Orestes Lane, Bagong Lipunan ng Crame, Cubao, Quezon City.1 It
is also where the subject
electric service under Service Identification
Number (SIN) 505983201-9 and is registered to Ramon E, Guerrero,
Complainant's father-in-law, located.
Complainant's version of the facts relates that sometime in May
2005, a certain Mrs. Dolores Veloso and Dr. Nenita Tan entered into a oneyear lease contract, whereby the latter leased her property located at NO.6,
Orestes Lane, Bagong Lipunan ng Crame, Quezon City (hereinafter
referred to as the "leased premises"). Before the effectivity of the contract,
Dr. Tan allegedly demanded from Mrs. Veloso the amount of Forty
Thousand Pesos (Php 40,000.00) as partial deposit. Dr. Tan promised to
apply the amount to the unpaid electric bills of the leased premises under
SIN 505982801, registered in the name of a certain Alfredo Tan.
Dr. Tan allegedly did not comply with her promise to pay the
unsettled electric bills of the premises. Mrs. Veloso was thus constrained to
negotiate with Respondent's offices to have the electric service at the
leased premises reconnected but for some unknown reasons, Respondent
refused to do so. Hence, Mrs. Veloso proceeded to Respondent's Cubao
Branch Office and thereat, she was allegedly advised by an engineer of the
1
Par. no. 4, complainant's
Motion to Admit the Incorporated Comment to Respondent's
Position Paper.
z
ERC Case No. 2006-210CC
Decision/ 20 April 2015
Page 2 of 10
said Office to use the electrical facilities of Ramon E. Guerrero considering
that the same was not being used by the latter. The engineer also allegedly
told Mrs. Veloso that she could use the said electric service if she would
have the electric service at the leased premises repaired and fixed. Mrs.
Veloso complied with this condition and the leased premises were thus
energized. Complainant asserted that Mrs. Veloso is the sole user of the
Guerrero account and religiously paid her electric bills.
On the other hand, Respondent asseverates that sometime in
August 2005, its Balintawak branch office was informed by Dr. Tan that her
tenant, Mrs. Veloso, was deriving electric power from her neighbor. This
information prompted Respondent to conduct an investigation.
Upon inspection by Respondent's personnel, it was found that the
service account at the leased premises had long been disconnected for
non-payment of bills. Respondent's service inspectors also discovered that
the source of power of the leased premises was through a "flying
connection" from the electric service registered in the name of Mr. Ramon
E. Guerrero.
In light of the foregoing findings, Respondent advised Mr. Guererro
to remove the "flying connection" as the same not only constitutes a
violation of the terms and conditions of his electric service contract with
Respondent but also poses danger as a fire hazard. Because the advice
allegedly remained unheeded, Respondent sent Mr. Guerrero a demand
letter dated January 9, 2006, formally demanding from him to immediately
remove the "flying connection" and with warning that should he fail to do so,
Respondent would be constrained to cut off his electric service.
Mr. Guerrero allegedly failed to abide by Respondent's demand to
remove the "flying connection" and thus another demand letter dated
February 10, 2006 was sent to him, reiterating the Respondent's demand
to have the said "flying connection" removed with warning of disconnecting
his electric service. Instead of conforming to Respondent's requests,
Complainant filed the present Complaint.
As regards the parties' arguments, Complainant argues that there is
no "flying connection" because first, the said connection had been made
with Respondent's imprimatur considering that the same was allegedly
made upon the recommendation of Respondent's personnel in its Cubao
branch, who even assisted in the installation of the same. Moreover, there
is no "flying connection" to speak of when there are no connections being
served by SIN 505983201-9 registered in the name of Mr. Guererro other
than the leased premises.2
2
Id. par. no. 9
ERC Case No. 2006-210CC
Decision! 20 April 2015
Page 3 of 10
For Respondent's part, it raises technical issues specifically with
regard to Complainant's standing in this case and his unverified Position
Paper. Respondent claims that Complainant has no standing in the present
Complaint because he has not presented a special power of attorney (SPA)
authorizing him to file the present Complaint in behalf of Mr. Guererro. It
also alleged that Complainant's Position Paper should be stricken off the
records because it is not verified in violation of the provisions of Article 1.10
of the Distribution Services and Open Access Rules (DSOAR). On the
merits, Respondent argues that the "flying connection" is a violation of the
terms and conditions of its electric service contract, embodied under BOE
Case No. 85-121, with Mr. Guererro as a registered subscriber and,
pursuant to the same contract, it has the right to disconnect Complainant's
electric service.
The issues to be resolved thus by the Commission are as follows:
ISSUES
I.
Whether or not Complainant has the
requisite standing to file the instant
Complaint against Respondent
II.
Whether
or
not
Complainant's
Position Paper should be stricken off
the record on the ground that it is
unverified
III.
Whether or not there is "flying
connection" under the circumstances
of this case
IV.
Whether or not Respondent has the
right to disconnect Complainant's
electric service on the ground that he
provided a "flying connection" to the
leased premises
Complainant has the standing to file
the instant complaint.
ERC Case No. 2006-210CC
Decision! 20 April 2015
Page 4 of 10
As earlier stated, Respondent questions the standing of Complainant
to file the present complaint. Particularly, Respondent's contention is
premised on the fact that Complainant failed to submit a Special Power of
Attorney (SPA), authorizing him to file this complaint in representation of
Mr. Guererro, the registered customer under SIN 505983201-9.
The Commission disagrees with Respondent.
In Complainant's Motion to Admit the Incorporated Comment to
Respondent's Position Paper, he asseverates that he did not submit an
SPA to file the case in behalf of Mr. Guererro because the latter is already
deceased for more than ten (10) years. However, Complainant failed to
submit a death certificate to substantiate this claim.
But even assuming that Complainant has no authority and personality
to file this case in behalf of Mr. Guerrero, as can be gathered from the
records and as admitted by Respondent in its Comment, Complainant has
the requisite legal standing to file the instant case as the actual user of the
metering facilities registered in the name of Mr. Guererro. In other words,
he is a real party in interest.
Section 2, Rule 3 of the Rules of Court, which is made applicable in
the instant case by virtue of Section 5, Rule 1 of the ERC Rules of Practice
and Procedure,3 defines real party in interest as follows:
Sec. 2. Parties in interest.
A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
Evidently, Complainant is a real party in interest because as the
present user of the electric service in question, he stands to be benefited
by the judgment in suit if he proves that he has not provided a "flying
connection" to his neighbor and that he has not violated the terms and
conditions of the electric service contract with Respondent. He also stands
to be injured by the judgment because if it is established that he provided
such connection, he faces the risk of having his electric service
disconnected.
3
Section 5, Rule 1 of the ERC's Rules of Practice and Procedure reads:
Section 5. Application of the Rules of Court. - In the absence of any applicable provision in these
rules, the pertinent provisions of the Supreme Court of the Philippines' Rules of Court and Rules on
Electronic evidence may, in the interest of expeditious disposition of the cases pending before the
Commission and whenever practicable and convenient, be applied suppletorily or by analogy.
ERC Case No. 2006-210CC
Decision! 20 April 2015
Page 5 of 10
For the foregoing reasons, the Commission finds that Complainant is
a real party in interest in this case and has the required legal capacity to file
the same against Respondent.
Complainant's
Position
sufficient in form.
Paper
is
Respondent urges this Commission to strike off the records
Complainant's Position Paper on the ground that it is not verified.
Respondent anchors this contention on Article 1.10 of the DSOAR, which
reads:
1.10 DISPUTE RESOLUTION
Every consumer has the right to file a complaint before
the ERC for violation of ERC laws, rules, regulations, guidelines
and policies, including but not limited to RA 9136 and its
Implementing Rules and Regulations, RA 7832 and its
Implementing Rules and Regulations and ERB Resolution No.
95-21, as amended; Provided, that the complainant has
previously discussed/consulted the issue with the Consumer
Welfare Desk (CWO) Officer or representative of the concerned
distribution utility and no settlement has been reached.
The disposition and resolution of consumer complaints
filed herein shall be governed by the ERC Rules of Practice and
Procedure, the Magna Carta for Residential
Electricity
Consumers, the Implementing Rules and Regulations of RA
7832 and all other relevant laws, rules, regulations, guidelines
and policies of the Commission.
While these are pending with ERC, the status quo of
cases involving violation of contract shall be maintained. The
maintenance of the status quo shall only be applicable to the
subject matter of the case and will not extend to any other
right/s and obligations between the parties.
The provisions of the Rules of Court on Summary
Procedure shall apply in an analogous and suppletory
character, whenever practicable and convenient.
A simple reading of the above-quoted provision immediately reveals
that there is no statement, express or implied, that all pleadings should be
verified. Hence, this particular contention of Respondent is misplaced.
Moreover, there is nothing in this Commission's Rules of Practice and
Procedure which mandates that a party's position paper should be verified.
ERC Case No. 2006-210CC
Decision! 20 April 2015
Page 6 of 10
Perhaps, Respondent is referring to the last paragraph of the abovecited provision in the DSOAR, which makes the provisions of the Rules on
Summary Procedure4 applicable in a suppletory manner. Section 3,
paragraph B of the Rules on Summary Procedure specifically provides that
"all pleadings shall be verified."
However, even if Article 1.10 of the DSOAR renders the Rules on
Summary Procedure applicable to complaints filed before this Commission,
it must be borne in mind that such applicability is only analogous or
suppletory in character and the said Rules cannot be made to prevail over
the provisions of the Commission's Rules of Practice and Procedure, which
nd
does not require position papers to be verified. In fact, the second (2 )
paragraph of Article 1.10 makes it clear that the disposition and resolution
of complaints filed before the Commission shall mainly be governed by,
among others, the ERC Rules of Practice and Procedure. Since the latter
Rules do not dictate that position papers of parties should be verified, the
absence of verification in Complainant's Position Paper does not leave it
fatally defective such that it deserves to be stricken off from the record.
Additionally, the Supreme Court has, on several occasions, ruled
that the absence of verification in a pleading where verification is required
does not leave such pleading fatally defective. As early as in the case of
Oshita v. Republic of the Philippines,5 the Court held:
The requirement regarding verification of a pleading is
simply intended to secure an assurance that what are alleged in
the pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is
filed in good faith. The requirement regarding verification of
a pleading is simply a condition
affecting the form of
pleading,
the
non-compliance
of which
does
not
necessarily render the pleading fatally defective. The court
may order the correction of the pleading if the verification
is lacking, or act on the pleading although it is not verified
if the attending circumstances
are such that the strict
compliance with the rule may be dispensed with in order
that the ends of justice or the law may thereby be served.
This view finds support in the ruling laid down by this Court in
several decisions. (Emphasis supplied)
In a more recent case,6 the Court reiterated
principle, to wit:
4
5
6
Resolution of the Supreme Court En Banc dated 15 October 1991
G.R. No. L-21180 (31 March 1967)
G.R. No. 165338 (28 November 2011)
the above-quoted
ERC Case No. 2006-210CC
Decision! 20 April 2015
Page 7 of 10
Verification of pleading is not an empty ritual bereft of any
legal importance. It is intended to secure an assurance that the
allegations contained in the pleading are true and correct; are not
speculative or merely imagined; and have been made in good faith.
A pleading may be verified by stating that the pleaders have read
the allegations in their petition and that the same are true and
correct based either on their personal knowledge or authentic
records, or based both on their personal knowledge and authentic
records. While the rule gives the pleaders several ways of verifying
their pleading, the use of the phrase personal knowledge or
authentic records is not without any legal signification and the
pleaders are not at liberty to choose any of these phrases fancifully
xxx
Nonetheless, the Rules and jurisprudence on the matter have it that the
court may allow such deficiency to be remedied. In Altres v. Empleo, this
Court pronounced for the guidance of the bench and the bar that
"non-compliance x x x or a defect [in the verification] does not
necessarily render the pleading fatally defective. The court may
order its submission or correction or act on the pleading if the
attending circumstances are such that strict compliance with the
Rule may be dispensed with in order that the needs of justice may
be served thereby." (Emphasis supplied)
In consideration of the foregoing, assuming for the sake of argument that
a position paper filed before this Commission must be verified, the lack of
verification in Complainant's Position Paper is not a fatal deficiency and may be
brushed aside to serve the ends of substantial justice. Moreover, it bears
stressing that administrative bodies exercising quasi-judicial powers, such as this
Commission, are not strictly bound by the technical niceties of law and
procedure and the rules obtaining in courts of law. They are unfettered by
the rigidity of certain procedural requirements.? Thus, there is nothing in the
applicable laws or rules that would prevent this Commission from taking a
liberal treatment of the absence of verification in Complainant's Position
Paper and act on it as it is.
Complainant's
act
of providing
electric service
to Mrs. Ve/oso
constitutes "flying connection" and
is a violation of the terms and
conditions of the electric service
contract with Respondent.
Coming now to the merits of this case, Complainant argues that his
act of providing electric service to his neighbor, Mrs. Veloso, does not
7
SamaHa
v. CA, G.R. No. 140079 (31 March 2005)
ERC Case No. 2006-210CC
Decision! 20 April 2015
Page 8 of 10
constitute "flying connection" because, first, the same was allegedly
effected upon the recommendation and with the consent of Respondent's
personnel at its Cubao office branch and, second, the connection cannot
be deemed to be "flying connection" since there is only one property-the
premises being leased by Mrs. Veloso-being
served by Complainant's
metering facilities and there are no other connections made thereon.
Respondent, on the other hand, argues that Complainant's act of
providing electric service to his neighbor is itself a "flying connection" and is
violative of the terms and conditions of the electric service contract.
On this issue, We find for the Respondent.
The pertinent provisions of the electric service contract as embodied
in Annex "A" of BOE Case No. 85-121 reads:
USE OF ENERGY BY CUSTOMERS:
xxx
The service connection, transformers, meters and devices
supplied by the Company for each Customer have a definite
capacity and no additions to the equipment or load connected
thereto, or resale of current will be allowed except by written
consent of the company. The Customer agrees to notify the
Company of any increase or decrease of his connected load.
xxx
Complainant's neighbor, Mrs. Veloso, insists that the connection was
installed upon the recommendation and with the consent of Respondent's
personnel at its Cubao branch. However, nowhere in the records of this can
evidence or proof of this allegation be found. Complainant neither
presented as witness the supposed engineer who made the suggestion to
Mrs. Veloso nor submitted any document embodying Respondent's written
consent to the connection. This being the case, the Commission cannot
consider or even admit this particular contention sans any evidence to
prove it in consonance with the well-entrenched rule that bare and
unsubstantiated allegations do not constitute substantial evidence and
have no probative value.8 The Commission is thus more inclined to believe
that there was no such consent given by Respondent's personnel in
installing the subject connection and the same constitutes a "flying
connection", which, in turn, is violative of the stipulations under the electric
service contract between Complainant and Respondent.
8
LNS International Manpower Services
v. Padua, G.R. No. 179792 (05 March 2010)
ERC Case No. 2006-210CC
Decision! 20 April 2015
Page 9 of 10
Respondent
has
the
right
to
disconnect
Complainant's
electric
service for violating the terms and
conditions of the electric service
contract.
As discussed above, Complainant's act of providing electric service to
Mrs. Veloso without Respondent's written consent falls within the concept
of "flying connection" and is a breach of the provisions of the electric
service contract. As such, Respondent has the right to cut off
Complainant's electric service pursuant to the following provision of the
same electric service contract, viz.:
DISCONTINUANCE
OF SERVICE
The Company reserves the right to discontinue service in
case the Customer is in arrears in the payment of bills or for
failure to pay the adjusted bills in those cases where the meter
stopped or failed to register the correct amount of energy
consumed, or for failure to comply with any of these terms
and conditions,
or in case of or to prevent fraud upon the
Company. x x x (Emphasis supplied)
In relation to this, it is a basic principle of law that obligations arising
from contracts have the force of law between the contracting parties and
should be complied with in good faith,9 provided they are not contrary to
law, morals, good customs, public order, or public policy.1o
In the case at bar, the afore-cited provisions of the electric service
contract are certainly valid and are not contrary to existing laws, morals,
good customs, public order, or public policy. This being the case, the said
contractual stipulations serve as the law between Complainant and
Respondent and as such, they must be enforced.
Moreover, under Article 18, paragraph (f) of the Magna Carta for
Residential Electricity Consumers, as amended, one of the grounds for
which a consumer's electric service may be disconnected is when such
consumer allows other end-users or persons to be connected to his
electrical installation, whether for profit or not. In the present case, it has
been established that Complainant supplied electric service to his
neighbor's leased premises. Pursuant to the Magna Carta, Respondent has
the legal basis to disconnect Complainant's electric service.
Be that as it may, Respondent must be reminded that although it has
the legal right to disconnect Complainant's electric service, it must see to it
9
Article 1159 of the Civil Code; Tiu v. Platinum Plans Phil., Inc., G.R. No. 163512 (28 February 2007)
Article 1306 of the Civil Code
10
ERC Case No. 2006-210CC
Decision! 20 April 2015
Page 10 of 10
that, in exercising such right, it complies with Articles 18, 20 and other
pertinent provisions of the Magna Carta on a consumer's right to due
process prior to disconnection of electric service.
WHEREFORE,
in consideration
of the foregoing
reasons,
Complainant is hereby ordered to remove the "flying connection" made on
the metering facilities under SIN 505983201-9 and registered under the
name of Ramon E. Guerrero to supply electricity to the leased premises of
Dolores Veloso at NO.6, Orestes Lane, Bagong Lipunan ng Crame,
Quezon City under SIN 505982801 and registered in the name of Alfredo
Tan. In the event that the "flying connection" still exists in Complainant's
metering facilities, Respondent may remove the same and disconnect
Complainant's electric service subject to the relevant provisions of the
Magna Carta on the observance of due process in electric service
disconnections.
50 ORDERED.
Pasig City, 20 April 2015.
G.aRJz~
NAIDA
Chairper
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Commis "oner
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Copy furnished:
1.
VIRGILIO E. POLIDO
Polido and Anchuvas Law Offices
Counsel for Complainant
San Leonardo cor V. Ferrer Streets
San Antonio Valley-I, Sucat, Paranaque City
2.
MANILA ELECTRIC COMPANY
Legal Department
Ortigas Avenue, Pasig City
1_
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RONIMO D. 5TA. ANA
Commissioner