legal Free Legal Advice

[agentjackbauer]

Patience paneros, I dont get paid for this, haha, just kidding.

 

I already told Jake to give me until Tuesday. If I dont have it by tomorrow then I must have imagined it, ha ha.

Edited September 18, 2006 by agentjackbauer

[jefoy]

problem: microsoft winmm wdm audio compatibility driver

this what i got when i windows update finish anyone help me on this? Before i had a sound and audio working in my skype but right now problem ko ito, i tried to re installed the driver na kasama ng mobo ko pero nde nya mahanap sa cd ung right driver ng "microsoft winmm wdm audio compatibility driver". I tried to uninstall and scan for hardwre changes then mag pop up ung audio device na yan but problem is corrupted at ung driver how can i fixed this?

[agentjackbauer]

Thanks for your patience gents. I've found it. Rivera vs. Solidbank Corp., G.R. No. 163269, April 19, 2006. Allow me to summarize the case.

 

Petitioner Rivera was an employee of Solidbank who availed of the company's retirement package and received the net amount of P963,619.28. Upon availment thereof, he was required to sign an Undertaking which stated thus:

 

"… I hereby expressly undertake that I will not seek employment with any competitor bank or financial institution within one (1) year from 28 February 1995."

 

At the time of his retirement, Rivera was the Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group. On May 1, 1995, despite his Undertaking, Rivera was employed by Equitable as its own Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group.

 

Solidbank sued Rivera for Sum of Money with a Prayer for Writ of Preliminary Attachment. On summary judgment, the trial court ruled in favor of the bank. The Court of Appeals affirmed the ruling in substance. It ruled that the contract was valid and constituted the law between the parties.

 

The SC found the petition meritorious but remanded the same to the trial court for reception of evidence. The SC made the following relevant rulings:

 

(1) "The issue as to whether the post-retirement competitive employment ban incorporated in the Undertaking is against public policy is a genuine issue of fact requiring the parties to present evidence to support their respective claims."

 

(2) "On the face of the Undertaking, the post-retirement competitive employment ban is unreasonable because it has no geographical limits; Rivera is barred from accepting any kind of employment in any competitive bank within the proscribed period. Although the period of one year may appear reasonable, the matter of whether the restriction is reasonable or unreasonable cannot be ascertained with finality solely from the terms and conditions of the Undertaking or even in tandem with the Release, Waiver and Quitclaim.

 

(3) The employer must establish that a restrictive covenant barring an employee from accepting a competitive employment after retirement or resignation is not unreasonable or oppressive, or in undue or unreasonable restraint of trade. The employer must show that the restriction is reasonable and not greater than necessary to protect the employer's business interests.

 

(4) The determination of reasonableness is made on the particular facts and circumstances of each case. Thus, the courts must have before it evidence relating to the legitimate interests of the employer which might be protected in terms of time, space and the types of activity proscribed.

 

(5) In determining whether or not the contract is reasonable, the trial court should consider the following factors: (a) whether the covenant protects a legitimate business interest of the employer; ( whether the covenant creates an undue burden on the employee; c ) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy.

 

(6) There is a distinction between restrictive covenants barring an employee from accepting a post-employment competitive employment (restraint on trade in employment contracts) and restraints on post-retirement in pension and retirement plans (contracts which provide that an employee who accepts post-retirement competitive employment will forfeit retirement benefits. The strong weight of authority is that forfeitures for engaging in subsequent competitive employment included in pension and retirement plans are valid even though unrestricted in time or geography.

[rocco69]

In amplification, the Supreme Court recognizes the validity of post-employment restrictions, so long as the same is REASONABLE.

 

In Ferrazzini v. Gsell (34 Phil. 697) [cited in the Rivera v. Solidbank case], the Supreme Court declared as an unreasonable restraint of trade a provision in the contract of employment that prohibited the employee for five years from the termination of employment from accepting ANY employment with any employer in the Philippines except upon prior written permission from the former employer.

 

The Supreme Court said that while the restraint was for five years only and covered employment only inthe Philippines, it was not limited to a specific trade. The employee would have had to leave the Philippines to obtain other employment if the former employer withheld his consent to the employee’s working elsewhere in country.

 

In Ollendorf v. Abrahamson (38 Phil. 585), the contract of employment prohibited the employee from accepting employment in any business similar to or competitive with that of the employer within the Philippines for five years from the date of the agreement. The employee engaged in the manufacture and sale of embroidered underwear for export in competition with the employer. The Supreme Court held that the former employee may be enjoined from engaging in these competing activities, reasoning that:

 

“the contract here in question. . . does not seem to us to be obnoxious to the rule of reasonableness. While such restraint if imposed as a condition of the employment of a day laborer would at once be rejected as merely arbitrary and wholly unnecessary to the protection of the employer, it does not seen so with respect to an employee whose duties

are such as of necessity to give him an insight into the general scope and details of his employer’s business.”

 

However, the Supreme Court staed in Ollendorf that a post-employment restraint prohibiting employees from engaging in ANY employment in the cosmetics, pharmaceutical and personal case industries, ANYWHERE and ANYTIME would be broad and unbounded restraint and would be unenforceable.

 

In G. Martini v. Glaiserman (39 Phil. 120) the Supreme Court declared that a stipulation that the employee, for one year after the termination of his contract, will not engage, for himself or others, in any business similar to that in which the employer may be engaged, is void as constituting an unreasonable restriction where it appears that the employer is engaged in a great variety of business enterprises, while the employee was working only in a minor branch of the business. The Supreme Court also rejected the employer’s claim that the employee should be restrained from engaging in any business identical to that in which he was employed, holding that an employment restraint which is greater than necessary for the protection of the employer is void IN ITS ENTIRETY and the employer cannot cure the invalidity by a waiver of the express terms of the stipulation and its election to limit the restraint to that which would have been permissible.

 

 

Thanks for your patience gents. I've found it. Rivera vs. Solidbank Corp., G.R. No. 163269, April 19, 2006. Allow me to summarize the case.

 

Petitioner Rivera was an employee of Solidbank who availed of the company's retirement package and received the net amount of P963,619.28. Upon availment thereof, he was required to sign an Undertaking which stated thus:

 

"… I hereby expressly undertake that I will not seek employment with any competitor bank or financial institution within one (1) year from 28 February 1995."

 

At the time of his retirement, Rivera was the Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group. On May 1, 1995, despite his Undertaking, Rivera was employed by Equitable as its own Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group.

 

Solidbank sued Rivera for Sum of Money with a Prayer for Writ of Preliminary Attachment. On summary judgment, the trial court ruled in favor of the bank. The Court of Appeals affirmed the ruling in substance. It ruled that the contract was valid and constituted the law between the parties.

 

The SC found the petition meritorious but remanded the same to the trial court for reception of evidence. The SC made the following relevant rulings:

 

(1) "The issue as to whether the post-retirement competitive employment ban incorporated in the Undertaking is against public policy is a genuine issue of fact requiring the parties to present evidence to support their respective claims."

 

(2) "On the face of the Undertaking, the post-retirement competitive employment ban is unreasonable because it has no geographical limits; Rivera is barred from accepting any kind of employment in any competitive bank within the proscribed period. Although the period of one year may appear reasonable, the matter of whether the restriction is reasonable or unreasonable cannot be ascertained with finality solely from the terms and conditions of the Undertaking or even in tandem with the Release, Waiver and Quitclaim.

 

(3) The employer must establish that a restrictive covenant barring an employee from accepting a competitive employment after retirement or resignation is not unreasonable or oppressive, or in undue or unreasonable restraint of trade. The employer must show that the restriction is reasonable and not greater than necessary to protect the employer's business interests.

 

(4) The determination of reasonableness is made on the particular facts and circumstances of each case. Thus, the courts must have before it evidence relating to the legitimate interests of the employer which might be protected in terms of time, space and the types of activity proscribed.

 

(5) In determining whether or not the contract is reasonable, the trial court should consider the following factors: (a) whether the covenant protects a legitimate business interest of the employer; ( whether the covenant creates an undue burden on the employee; c ) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy.

 

(6) There is a distinction between restrictive covenants barring an employee from accepting a post-employment competitive employment (restraint on trade in employment contracts) and restraints on post-retirement in pension and retirement plans (contracts which provide that an employee who accepts post-retirement competitive employment will forfeit retirement benefits. The strong weight of authority is that forfeitures for engaging in subsequent competitive employment included in pension and retirement plans are valid even though unrestricted in time or geography.

[jake_roxas]

As i see it, the SC has not finally ruled on this type of clauses. That is, there is no categorical ruling has been laid down yet. In fact, it remanded the case for further proceedings. The decision contains some parts which may be used by either party (employer vs. employee) to further their respective positions.

 

http://www.supremecourt.gov.ph/jurispruden...o.%20163269.htm

 

"In the present case, the trial court ruled that the prohibition against petitioner accepting employment with a competitor bank or financial institution within one year from February 28, 1995 is not unreasonable. The appellate court held that petitioner was estopped from assailing the post-retirement competitive employment ban because of his admission that he signed the Undertaking and had already received benefits under the SRP.

 

 

 

The rulings of the trial court and the appellate court are incorrect.

 

 

 

There is no factual basis for the trial court’s ruling, for the simple reason that it rendered summary judgment and thereby foreclosed the presentation of evidence by the parties to prove whether the restrictive covenant is reasonable or not. Moreover, on the face of the Undertaking, the post-retirement competitive employment ban is unreasonable because it has no geographical limits; respondent is barred from accepting any kind of employment in any competitive bank within the proscribed period. Although the period of one year may appear reasonable, the matter of whether the restriction is reasonable or unreasonable cannot be ascertained with finality solely from the terms and conditions of the Undertaking, or even in tandem with the Release, Waiver and Quitclaim."

[agentjackbauer]

That's what I said dude. I said the SC remanded the case to the RTC for reception of evidence. Nonetheless, you cannot ignore that the SC laid down some guidelines with regard to: (a) the kind of evidence needed in a case like this (b ) the policy considerations behind non-compete clauses. True, the SC did not actually rule on the case at bar but SOME of its declarations in this case are nonetheless important and, as far as I know, heretofore never been previously made

Edited September 19, 2006 by agentjackbauer

[kelvin]

problem: microsoft winmm wdm audio compatibility driver

this what i got when i windows update finish anyone help me on this? Before i had a sound and audio working in my skype but right now problem ko ito, i tried to re installed the driver na kasama ng mobo ko pero nde nya mahanap sa cd ung right driver ng "microsoft winmm wdm audio compatibility driver". I tried to uninstall and scan for hardwre changes then mag pop up ung audio device na yan but problem is corrupted at ung driver how can i fixed this?

 

Nang mag update ung hardware using windows update... hindi sila nag match. so tendency hindi gumana ung audio device mo.

First thing to do sana, the drive rollback. (you can view this sa device manager)

 

PEro kung na uninstall mo na ung driver ng audio mo... try to manually install the driver.

dont use the recommended radio button of microsoft. Go for the manually select my driver, then search the driver in your CD rom or alike...

Usually nagtatanong ang microsoft kung install mo ung driver eventhough hindi sya for microsoft.

just say yes...

 

Hope masundan mo ung guide ko...

:hypocritesmiley:

[kelvin]

may way ba para magamit ulit yung product ID ng Win XP SP2 para ma activate yung win xp mo?

 

na ka pag activate na kc ako b4 same product key pero this time dina pede yung isa... any help?

 

thanks

 

The best solution for this is to buy another copy of Genuine Microsoft CD.

Pero kung kapos, u could try this option that might work...

 

1.) Try to disconnect ur PC from the internet...

2.) Ask your friend kung may Copy sila ng XP SP2 for network installation. (as much as possible ung old release)

3.) Dont ever download the Windows Genuine Notification ( for some reason sila ang dahilan ng paghihirap natin)

 

(The ultimate no!no! policy)

4.) Pag ayaw pa din.... try to browse back sa previous post ko bout sa other site that might help u... ( no kidding!!!)

naghirap akong hanapin un... kaya maghirap ka din kahit konti... :goatee: already gave u the site to look... tyaga ka nalang magbasa.

 

Goodluck

[nuneynu]

good morning sa inyo!

 

i need an expert advice kasi someone is suing me for reckless imprudence resulting to damage to property with physical injuries. i was driving my pick up truck when i hit a motorcycle at the back. to make things worse, i was a bit drunk during the time. but there was no alcohol test done on me though. however the rider only has a student permit and the motorcycle isn't registered.

 

we had an agreement before and they signed a release form stating that in acknowledgment of thirty thousand pesos plus the money to be collected from the insurance claim of my pick up truck. however, i was not able to claim the insurance, third party liability, since they changed their mind and decided to file a case instead. they claimed that the insurance has already lapsed. i contended them and told them that miski na lapse na since it is still valid during the time of the accident, we could still claim.

 

my lawyer assured me that i will not go to jail for this and that wala naman nakukulong sa case na ganito except those who does not consult a lawyer. i am still bothered though, and i would appreciate a lot if you could give me your opinion regarding this matter.

 

maraming salamat in advance!

[nuneynu]

just a follow up question. how long does a case like this usually take in case it reaches the supreme court?

[LovenFaith]

Good afternoon po...

 

i just wanna ask if there's somebody here who could help regarding a case i'm planning to file against a neighbor who's oftenly threatening me

because he wants to have my place where i present ly residing now?

magkano nmn po if ever is the amount i have to prepare would i pursue this case i'm talking about...?

thanks so much po...

[jake_roxas]

That's what I said dude. I said the SC remanded the case to the RTC for reception of evidence. Nonetheless, you cannot ignore that the SC laid down some guidelines with regard to: (a) the kind of evidence needed in a case like this (b ) the policy considerations behind non-compete clauses. True, the SC did not actually rule on the case at bar but SOME of its declarations in this case are nonetheless important and, as far as I know, heretofore never been previously made

 

yes that is what you said i would suppose.

but can I not express my personal observation?

 

"Nonetheless, you *cannot ignore* that the SC laid down some guidelines with regard to: (a) the kind of evidence needed in a case like this (b ) the policy considerations behind non-compete clauses. True, the SC did not actually rule on the case at bar but SOME of its declarations in this case are nonetheless important and, as far as I know, heretofore never been previously made."

 

- Did I? I am so sorry if thats how you see it. But you propably misunderstood my reading of this case.

[jake_roxas]

good morning sa inyo!

 

i need an expert advice kasi someone is suing me for reckless imprudence resulting to damage to property with physical injuries. i was driving my pick up truck when i hit a motorcycle at the back. to make things worse, i was a bit drunk during the time. but there was no alcohol test done on me though. however the rider only has a student permit and the motorcycle isn't registered.

 

we had an agreement before and they signed a release form stating that in acknowledgment of thirty thousand pesos plus the money to be collected from the insurance claim of my pick up truck. however, i was not able to claim the insurance, third party liability, since they changed their mind and decided to file a case instead. they claimed that the insurance has already lapsed. i contended them and told them that miski na lapse na since it is still valid during the time of the accident, we could still claim.

 

my lawyer assured me that i will not go to jail for this and that wala naman nakukulong sa case na ganito except those who does not consult a lawyer. i am still bothered though, and i would appreciate a lot if you could give me your opinion regarding this matter.

 

maraming salamat in advance!

 

1. since you are being sued for reckless imprudence resulting to damage to property with physical injuries, i assume that this is a criminal case and hence, it carries with it a penalty of incarceration. if already filed with the regular court, is the title of the case PEOPLE OF THE PEOPLE vs. your name? if not, are you currently before the public prosecutor? if YES to both, then this is a criminal case and definitely, the penalty of imprisonment, confiscation of license, and fine, etc. is imposable.

 

whether or not you can actually go to jail depends on how your case is handled. assuming the penalty of imprisonment is imposed, i would also suppose that you are qualified for probation.

 

2. as long as the policy was still in effect at the time of loss or damage, then it is still covered.

[agentjackbauer]

1. since you are being sued for reckless imprudence resulting to damage to property with physical injuries, i assume that this is a criminal case and hence, it carries with it a penalty of incarceration. if already filed with the regular court, is the title of the case PEOPLE OF THE PEOPLE vs. your name? if not, are you currently before the public prosecutor? if YES to both, then this is a criminal case and definitely, the penalty of imprisonment, confiscation of license, and fine, etc. is imposable.

 

whether or not you can actually go to jail depends on how your case is handled. assuming the penalty of imprisonment is imposed, i would also suppose that you are qualified for probation.

 

2. as long as the policy was still in effect at the time of loss or damage, then it is still covered.

 

A case for reckless imprudence resulting to damage to property with physical injuries is a criminal case. No need to know the title just to make that determination.

 

The penalty for this offense is probationable, meaning less than six years and one day. If you have no previous conviction then you can easily file for probation if and when you are convicted. I do not personally know of anyone na nakulong because of this case. More often than not the parties simply enter into a compromise agreement to settle their differences.

[nuneynu]

thanks for your very usefull info.

 

i hope you don't mind if ask some more additional info. namely, does the fact that the rider does not have any license and that his motorcycle isn't registered hold any weight in court? secondly, does the release they signed become invalid since i wasn't able to process the insurance claim when they decided to file a case against me instead?

 

i really wanted to settle and i offered a very decent amount. but they refuse to accept and demanded an amount i really couldn't afford. the case is now with the quezon city fiscal and we'l have our first hearing on tuesday.

 

maraming salamat po.