Republic of the Philippines

Court of Appeals
Manila

THIRTEENTH DIVISION

PHILIPPINE SOCIETY OF CA-G.R. CV No. 93418

SANITARY ENGINEERS, INC.
and ENGR. FRANCISCO S.
Members:
BRAVO in his personal capacity
as a registered Sanitary Engineer,
Petitioners-Appellees, PIZARRO, N.B., Chairperson,
GAERLAN, S.H., and
- versus - QUIJANO-PADILLA, M.L.C., JJ.:

HONORABLE HERMOGENES E. Promulgated:

EBDANE, in his official capacity
as Secretary of THE August 23, 2016
DEPARTMENT OF PUBLIC
WORKS AND HIGHWAYS,
PROFESSIONAL REGULATION
COMMISSION, THE BOARD OF
SANITARY ENGINEERS, THE
BOARD OF MASTER
PLUMBERS, and THE
NATIONAL MASTER
PLUMBERS ASSOCIATION OF
THE PHILIPPINES,
Respondents-Appellants.
---------------------------------------------------------------------------------------

DECISION

QUIJANO-PADILLA, J.:

Before this Court is an appeal filed by the Office of the Solicitor

General (OSG), representing the Secretary of the Department of Public
Works and Highways (DPWH), the Professional Regulation
Commission, The Board of Sanitary Engineers, The Board of Master
Plumbers and The National Master Plumbers Association of the
CA-G.R. CV No. 93418 Page 2 of 11
Decision

Philippines (respondents-appellants), from the Decision1 dated

February 6, 2009 of the Regional Trial Court (RTC), Branch 40,
Manila, in Civil Case No. 05-112479, which granted the petition for
declaratory relief of the Philippine Society of Sanitary Engineers,
Inc. (PSSEI) and Engr. Francisco S. Bravo, and in turn, declared
Sections 301 (2a), 302 (3g), 302 (9) and 303 (8) of the Implementing
Rules and Regulations of the National Building Code (IRR-NBC)
null and void for violating PSSEI's right to due process.

Facts Antecedents

By virtue of his legislative power, 2 President Ferdinand E.

Marcos issued Presidential Decree (PD) No. 1096 in 1977, which
revised Republic Act No. 6541, known as The National Building
Code of the Philippines, providing for all buildings and structures, a
framework of minimum standards and requirements to regulate
and control their location, site, design quality of materials,
construction, use, occupancy and maintenance.3

Pursuant thereto, on October 29, 2004, then Acting Secretary of

the DPWH, Florante Soriquez, issued the New Implementing Rules
and Regulations of the National Building Code (IRR-NBC).

On April 28, 2005, the PSSEI filed before the RTC, Manila, a
Petition4 for Injunction and Declaratory Relief, which sought to
enjoin the Secretary of DPWH from implementing certain
provisions of the new IRR-NBC, premised on the following
grounds, viz: 1) that the new IRR-NBC is unconstitutional as it
deprived sanitary engineers from practicing their profession
without due process. Section 302 (3g) of the IRR-NBC requires that
only master plumbers may prepare, sign, and seal “plumbing
documents”. Section 302 (9) of the IRR-NBC, in turn, provides that
“plumbing documents” shall cover “all plumbing installations,
additions and/or alterations involving hot and cold water supply,
fixtures, sewage drainage and vent system, storm drainage and
sewerage system within or adjacent to the building.” Such
“plumbing documents” are separate and distinct from “sanitary

1 Records, Vol. 3, pp. 443-455.

2 Proclamation No. 1081 dated September 21, 1972.
3 Section 102, PD No. 1096 (1977).
4 Records, Vol. 1, pp. 5-11.
CA-G.R. CV No. 93418 Page 3 of 11
Decision

documents” covered in Section 302 (8) of the IRR-NBC and Section

301 (2a) of the same rules now requires separate plumbing and
sanitary permits. In effect, master plumbers, who are mere
tradesmen with only a high school diploma as a prerequisite to the
practice of their trade, would now be able to install and supervise all
plumbing works to the exclusion of sanitary engineers, whose main
responsibility relates to the installation and supervision of all forms
of sanitary works, which necessarily include plumbing installation.
There was also no prior consultation and participation from the
representatives of the sanitary engineers; 2) that the new IRR-NBC
violates the doctrine of separation of powers as it amended,
superseded, or revoked duly promulgated statutes such as the
Sanitary Engineering Law (RA No. 1364) and the Plumbing Law
(RA No. 1378); and 3) that there was no effective publication of the
IRR-NBC.

On May 3, 2005, the RTC issued a 72-hour Temporary

Restraining Order5 (TRO) against the Secretary of DPWH from
implementing and enforcing the provisions of the Revised
Implementing Rules and Regulations of PD No. 1096. Upon hearing
of the parties and their respective witnesses, the RTC granted the
writ of preliminary injunction in an Order6 dated May 13, 2005.

In its Answer,7 the OSG refuted PSSEI's claim and countered

that the new rules merely define and delineate the responsibilities
assumed by both sanitary engineers and master plumbers with
regard to certifications required for building permits. Under the
IRR-NBC, sanitary engineers are still entitled to sign sanitary plans
required for building permit applications to the exclusion of master
plumbers. The OSG likewise stressed that the promulgation of the
IRR-NBC is a legitimate exercise of the delegation of powers to the
Secretary of DPWH pursuant to Section 211 of PD No. 1096. Hence,
the Court should not intrude into policy matters of a co-equal
branch of government enshrined by the doctrine of separation of
powers.

The National Master Plumbers Association of the Philippines

(NAMPAP), on the other hand, asserted that the provisions of the
5 Id. at pp. 2-3.
6 Id. at pp. 133-135.
7 Id. at pp. 234-241.
CA-G.R. CV No. 93418 Page 4 of 11
Decision

new IRR-NBC, specifically Sections 302 (3g) and 302 (9), merely
clarified the provisions of Section 2 of RA No. 1378 or the Plumbing
Law and the pertinent provisions of the Revised National Plumbing
Code of the Philippines, thus, providing a set of “plumbing
documents” as required in applying for ancillary permit in
connection with a building construction, as distinguished to
“sanitary documents” specified and described in Section 308(8) of
the new IRR-NBC.8

Engr. Antonio H. Hormillosa, representing the Board of

Sanitary Engineers (BSE) filed his Answer with Affirmative
Defenses,9 stating that the BSE is constrained from doing anything
as regards the new IRR-NBC because the promulgation and
implementation thereof lies exclusively with the Secretary of
DPWH.

Ruling of the Trial Court

After all arguments by the parties were submitted, the RTC in

a Decision dated February 6, 2009, declared the assailed portions of
the new IRR-NBC null and void. In so doing, it held that the new
IRR-NBC delineating the field of sanitary engineering and
empowering master plumbers to sign plumbing documents
exclusively are not in conformity with fairness and reasonableness.
To allow master plumbers who are considered mere tradesmen,
whose minimum qualification is a high school diploma, to sign
plumbing documents exclusively would not only deprive sanitary
engineers of the practice of their profession but would also amount
to putting the health of the public in peril. It likewise ruled that the
new IRR-NBC is a usurpation of the legislative power as it unduly
expands the practice of plumbing as defined in Section 2(a) of the
Plumbing Law. Furthermore, the RTC ruled that the new IRR-NBC
was defectively published insofar as the prescribed preformatted
application form for ancillary “sanitary” and “plumbing” permits, a
requirement for the issuance of the building permit under the IRR-
NBC, was not published. The dispositive portion of the decision
reads:10

8 Id. at pp. 184-186.

9 Id. at pp. 250-253.
10 Supra Note 1, p. 455.
CA-G.R. CV No. 93418 Page 5 of 11
Decision

WHEREFORE, premises considered, judgment is

hereby rendered declaring Sections 301 (2a), 302 (3g), 302 (9),
303 (8) of the Implementing Rules and Regulations of the
National Building Code null and void, and making
permanent the writ of preliminary injunction that has been
issued by this Court against public respondents.

No pronouncements as to costs.

SO ORDERED.

Aggrieved, respondents-appellants separately filed their

Notices of Appeals11, and the OSG, representing the Secretary of
DPWH, raises the following assignment of errors, to wit:12

1.

THE RTC ERRED IN FINDING THAT SECTIONS 301

(2A), 302 (3G), 302 (9), AND 303 (8) OF THE REVISED IRR-
NBC UNJUSTLY DEPRIVE PETITIONERS-APPELLEES
OF THE PRACTICE OF THEIR PROFESSION WITHOUT
DUE PROCESS OF LAW.

2.

THE RTC ERRED IN FINDING THAT “THE NEW IRR-

NBC IS A USURPATION OF LEGISLATIVE POWERS.”

The NAMPAP, on the other hand, posits the following

assignment of errors, viz:13

I.

THE COURT A QUO GRAVELY ERRED IN DECLARING

SECTIONS 301 (2a), 302 (3g), 302 (9), 303 (8) OF THE NEW
IMPLEMENTING RULES AND REGULATIONS OF THE
NATIONAL BUILDING CODE NULL AND VOID ON
THE GROUND THAT IT UNJUSTLY DEPRIVES
SANITARY ENGINEERS OF THEIR PROFESSION
WITHOUT DUE PROCESS OF LAW.

II.

11 Records, Vol. 3, pp. 458, 564.

12 Rollo, pp. 78-79.
13 Id. at pp. 183-184.
CA-G.R. CV No. 93418 Page 6 of 11
Decision

THE COURT A QUO GRAVELY ERRED IN DECLARING

SECTIONS 301 (2a), 302 (3g), 302 (9), 303 (8) OF THE NEW
IMPLEMENTING RULES AND REGULATIONS OF THE
NATIONAL BUILDING CODE NULL AND VOID ON
THE GROUND THAT IT IS A USURPATION OF
LEGISLATIVE POWERS.

III.

THE COURT A QUO GRAVELY ERRED IN DECLARING

SECTIONS 301 (2a), 302 (3g), 302 (9), 303 (8) OF THE NEW
IMPLEMENTING RULES AND REGULATIONS OF THE
NATIONAL BUILDING CODE NULL AND VOID ON
THE GROUND OF DEFECT IN ITS PUBLICATION.

Respondents-appellants argue that the RTC has no legal and

factual bases for declaring null and void Sections 301 (2a), 302 (3g),
302 (9) and 303 (8) of the Implementing Rules and Regulations of the
National Building Code. The IRR-NBC merely echoed the distinct
fields of action provided for by the Plumbing Law and the Sanitary
Engineering Law. They likewise contend that the Secretary of
DPWH did not go beyond its delegated powers when it
implemented the IRR-NBC as PD No. 1096 itself under Section 211
thereof authorized the Secretary of DPWH to formulate necessary
rules for the implementation of the provisions of the Code.14

The issues before us rest upon the legality of Sections 301 (2a),
302 (3g), 302 (9) and 303 (8) of the Implementing Rules and
Regulations of the National Building Code; and whether there is
usurpation of powers by the Secretary of DPWH in the issuance of
the IRR-NBC.
Our Ruling

At the outset, we note that the issues raised by the parties on

appeal are pure questions of law, as they involve the legality of the
IRR-NBC, hence, should have been brought directly to the Supreme
Court via a petition for review on certiorari.

Under the Rules, judgments of the Regional Trial Courts in the

exercise of their original jurisdiction are to be elevated to the Court
of Appeals in cases where the appellant raises questions of fact or
mixed questions of fact and law. On the other hand, appeals from
14 Id. at pp.86-90; 189-203.
CA-G.R. CV No. 93418 Page 7 of 11
Decision

judgments of the Regional Trial Courts in the exercise of their

original jurisdiction must be brought directly to the Supreme Court
in cases where the appellant raises only questions of law. Section 2,
Rule 41, of the 1997 Rules of Civil Procedure, the modes of appeal
are as follows:

SEC. 2. Modes of appeal. —

(a) Ordinary appeal.—The appeal to the Court to Appeals

in cases decided by the Regional Trial Court in the exercise
of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except
in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in
like manner.

(b) Petition for review. — The appeal to the Court of

Appeals in cases decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by petition for
review in accordance with Rule 42.

(c) Appeal by certiorari. — In all cases where only

questions of law are raised or involved, the appeal shall be
to the Supreme Court by petition for review on certiorari in
accordance with Rule 45.

To determine whether an issue is that of a fact or law or

mixed, the case of Macawiwili Gold Mining and Development
Corporation, Inc. v. Court of Appeals15 is of authority, which held that:

[F]or a question to be one of law, the same must not

involve an examination of the probative value of the
evidence presented by the litigants or any of them. And the
distinction is well-known: There is a question of law in a
given case when the doubt or difference arises as to what the
law is on a certain state of facts; there is a question of fact
when the doubt or difference arises as to the truth or the
falsehood of alleged facts.

A scrutiny of the assignment of errors of respondents-

15 G.R. No. 115104, October 12, 1998, citing Medina v. Asistio Jr., 191 SCRA 218 (1990), Ramos
v. Pepsi-Cola Bottling Co. of the P.I., 191 SCRA 289 (1967).
CA-G.R. CV No. 93418 Page 8 of 11
Decision

appellants in this case raises the sole issue of whether certain

portions of the IRR-NBC should be struck down as null and void for
being unconstitutional as they allegedly deprived petitioners-
appellees of their right to practice their profession without due
process of law. These are legal questions whose resolution does not
require an examination of the probative weight of the evidence
presented by the parties but a determination of what the law is on
the given state of facts. These issues raise questions of law which
should be the subject of a petition for review on certiorari under Rule
45 filed directly with the Supreme Court.

In the case of Macawiwili Gold Mining and Development

Corporation, Inc. v. Court of Appeals,16 the Supreme Court ruled that
the Court of Appeals committed grave error in denying the Motion
to Dismiss the appeal filed by petitioner, holding that:

The first four arguments advanced by respondent

Philex Mining raise the sole issue of whether it has, under
Presidential Decree No. 463, the right to expropriate the 21.9
hectare mining areas where petitioners' mining claims are
located. On the other hand, its final argument raises the
issue of whether the rules on the allegation of alternative
causes of action in one pleading under Rule 8, §1 of the
Rules of Court are applicable to special civil actions. These
are legal questions whose resolution does not require an
examination of the probative weight of the evidence
presented by the parties but a determination of what the law
is on the given state of facts. These issues raise questions of
law which should be the subject of a petition for review on
certiorari under Rule 45 filed directly with this Court. The
Court of Appeals committed a grave error in ruling
otherwise.

On the other hand, in both cases of Sevilleno v. Carilo17 and City

of Lapu Lapu v. Philippine Economic Zone Authority,18 the Supreme
Court sustained the Court of Appeals in dismissing the appeal on
the ground of wrong mode of appeal. The issue in both cases
pertains to the jurisdiction of the RTC over the subject matter of the
case. In Sevilleno, it elucidated, thus:

16 Supra Note 14.

17 G.R. No. 146454, September 14, 2007.
18 G.R. No. 184203 & G.R. No. 187583, November 26, 2014.
CA-G.R. CV No. 93418 Page 9 of 11
Decision

It is not disputed that the issue brought by petitioners

to the Court of Appeals involves the jurisdiction of the RTC
over the subject matter of the case. We have a long standing
rule that a court's jurisdiction over the subject matter of an
action is conferred only by the Constitution or by statute.
Otherwise put, jurisdiction of a court over the subject matter
of the action is a matter of law. Consequently, issues which
deal with the jurisdiction of a court over the subject matter
of a case are pure questions of law. As petitioners' appeal
solely involves a question of law, they should have
directly taken their appeal to this Court by filing a petition
for review on certiorari under Rule 45, not an ordinary
appeal with the Court of Appeals under Rule 41. Clearly,
the appellate court did not err in holding that petitioners
pursued the wrong mode of appeal. (Emphasis ours)

Likewise in City of Lapu Lapu, the Supreme Court reiterates

that:

We agree that the City availed itself of the wrong

mode of appeal before the Court of Appeals. The City raised
pure questions of law in its appeal. The issue of whether the
Regional Trial Court of Pasay had jurisdiction over the
PEZA's petition for declaratory relief is a question of law,
jurisdiction being a matter of law. The issue of whether the
PEZA is a government instrumentality exempt from
payment of real property taxes is likewise a question of law
since this question is resolved by examining the provisions
of the PEZA's charter as well as other laws relating to the
PEZA.

The Court of Appeals, therefore, did not err in

dismissing the City's appeal pursuant to Rule 50, Section 2 of
the Rules of Court.

Under Section 2, Rule 50 of the Rules of Court, in addition to

the grounds laid down in Section 1 thereof, an improper appeal is a
ground for dismissal, thus:

SEC. 2. Dismissal of improper appeal to the Court of

Appeals. — An appeal under Rule 41 taken from the Regional
Trial Court to the Court of Appeals raising only questions of
law shall be dismissed, issues purely of law not being
reviewable by said court. Similarly, an appeal by notice of
appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed.
CA-G.R. CV No. 93418 Page 10 of 11
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An appeal erroneously taken to the Court of Appeals

shall not be transferred to the appropriate court but shall be
dismissed outright.

In the case at bar, respondents-appellants raised pure

questions of law. The issue of whether certain portions of the IRR-
NBC are legal requires an examination of its provision vis-a-vis the
pertinent laws, i.e., the Plumbing Law and the Sanitary Engineering
Law, as well as other laws relating to it. The issue of the usurpation
of power by the Secretary of DPWH in the implementation of the
IRR-NBC is also a question of law as it involves the perusal of the
Constitution and the laws relating to the functions of the Secretary
of the DPWH. These issues are pure questions of law which must be
brought directly to the Supreme Court by filing a petition for review
on certiorari under Rule 45, not an ordinary appeal with this Court
under Rule 41. Hence, we are constrained to dismiss the present
appeal on the ground of being a wrong mode of appeal.

WHEREFORE, the instant appeal is hereby DISMISSED.

SO ORDERED.

Original Signed
MA. LUISA C. QUIJANO-PADILLA
Associate Justice

WE CONCUR:

Original Signed Original Signed

NORMANDIE B. PIZARRO SAMUEL H. GAERLAN
Associate Justice Associate Justice
CA-G.R. CV No. 93418 Page 11 of 11
Decision

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is
hereby certified that the conclusions in the above decision were
reached in consultation before the case was assigned to the writer of
the opinion of the Court.

Original Signed
NORMANDIE B. PIZARRO
Chairperson, Thirteenth Division