Another ‘349’ group questions SC ruling

Another group of claimants holding the controversial "349" winning numbers in the Pepsi Cola Number Fever promo in 1992 surfaced yesterday to question Wednesday’s Supreme Court decision junking an earlier petition for damages.

Coalition 349, headed by Vic del Fierro Jr., said it would appeal the nine-page decision written by Associate Justice Leonardo Quisumbing, which affirmed earlier decisions on the case by the Court of Appeals and a Makati City regional trial court, because not all claimants were properly represented in the hearings.

Del Fierro said the decision only banked on the Gerson Mendoza & Romulo Rodrigo cases, neither of which are accredited parties to resolve the 13-year-old controversy.

"The plaintiffs in this case should have been verified whether they are real persons or mere fictional names with unverifiable addresses when these cases were heard and tried at the Lower Court," said Del Fierro.

He feared that in the Philippines, even dead people can vote and in some instances even execute a deed of sale. By the same token, he said, even fictional plaintiffs can be presented with affidavits to manufacture basis for legal precedents.

He noted that his own father, a journalist who died in August 1960, was "resurrected" in November 1960 to execute a deed of sale honored by the Register of Deeds of Manila.

"My own mother, who died in 1950, also executed and signed her conformity to the deed of sale 16 years after she died," Del Fierro declared as he underscored the practice of judicial manipulation in the Philippines.

But even if the names in the cases resolved by the SC were factual, Del Fierro argued that it would still be a miscarriage of justice for thousands of 349 claimants to have only the groups of Mendoza and Rodrigo representing them.

The Rodrigo case was used by PepsiCo lawyers as a precedent to dismiss the class action case filed by Del Fierro and the Coalition 349 before Judge Caoibes Jr. of Las Piñas Branch 104.

In the three-year appeal to Court of Appeals, the coalition had earlier questioned the use of the Rodrigo and Mendoza groups as claimants in the cases.

The coalition also appealed the dismissal of the case after years of memorandum exchanges based on technical issues were relentlessly raised by Pepsi lawyers since 1997, two years after the New York Court had ordered PepsiCo US to submit to Philippine judicial courts.

American lawyers of PepsiCo accepted the decision and submitted an official stipulation in the Brooklyn Court of Judge Eugene Nickerson that recognized Vic del Fierro Jr. and the Coalition 349 as the representative of the 349 claimants.

Del Fierro was set to work with the late Melvin Belli, a colorful class action lawyer who filed claims versus Union Carbide, Inc. in the Bhopal India gas poisoning case. The death of Mr. Belli derailed the Lower Court of Brooklyn decision to have the case tried in the US, however.

As it is, Pepsi lawyers in the Philippines have been avoiding a judicial class action confrontation with Del Fierro and Coalition 349 whose body of evidence against PepsiCo in the 349 controversy was the basis for then Sen. Gloria Macapagal-Arroyo, as chairman of the Senate Committee on Trade, to conclude that PepsiCo US was guilty of gross negligence for misleading and deceptive advertising in the conduct of the 1992 Pepsi Number Fever promo.

Del Fierro alleges that Pepsi lawyers had practically raised every legal barrier possible to a substantial trial on the merit of the Pepsi 349 case with him as plaintiff since he was the only Filipino consumer advocate recognized officially and legally through a court stipulation submitted to the American Court by the PepsiCo American lawyers.

Instead of honoring the US Court stipulation, Pepsi’s Filipino lawyers through the years have been picking on obscure claimant plaintiffs, some even without any verifiable addresses and with slanted complaints at the onset, pointing to D.G. Consultares as the liable party.

Pepsi’s familiarity with D.G. Consultares but its absolute ignorance of the Senate Committee on Trade findings makes these complaints highly suspicious, added Del Fierro.

He said that the Pepsi 349 issue could only be finally resolved through a class action case in the United States, believing the Philippine courts could not resolve a substantial deliberation based on actual facts.

The only way to resolve it with finality is a legal showdown on substantial merits and not on technical issues that are aimed at delaying and denying justice.