This is a petition for review1 [Rollo, pp. 21-58.] under Rule 45 of the Revised Rules of Court which seeks to annul and set aside the Decision2 [Id. at 63-70.] and Resolution3 [Id. at 60-61.] of the Court of Appeals dated October 27, 1992 and January 5, 1994, respectively. The decision sustained the Order dated April 7, 1992 of the Regional Trial Court of Pasig City, Branch 166, denying due course to petitioner’s appeal from the Judgment in Criminal Case No. 70278 and allowing execution against the petitioner of the subsidiary indemnity arising from the offense committed by his truck driver.

The relevant facts as gleaned from the records are as follows:

On July 23, 1987, Simplicio Pronebo was charged by the Provincial Fiscal of Rizal with the crime of reckless imprudence resulting in damage to property with double homicide and double physical injuries.4 [Records, p. 36.] The case was docketed as Criminal Case No. 70278.

The information against him reads: ScmisÓ

After arraignment and trial, the court rendered its judgment dated February 4, 1991, which reads:

Thereafter, the accused filed an application for probation, so that the above judgment became final and executory.

Pertinently, the trial court also found that at the time of the vehicular accident accused Simplicio Pronebo was employed as the driver of the dump truck owned by petitioner Luisito Basilio.

On March 27, 1991, petitioner Luisito Basilio filed with the trial court a "Special Appearance and Motion for Reconsideration"6 [Id. at 41-47.] praying that the judgment dated February 4, 1991, be reconsidered and set aside insofar as it affected him and subjected him to a subsidiary liability for the civil aspect of the criminal case. The motion was denied for lack of merit on September 16, 1991.7 [Id. at 52-53.] Petitioner filed a Notice of Appeal8 [Id. at 54.] on September 25, 1991. MisÓ spped

On September 23, 1991, private respondent filed a Motion for Execution of the subsidiary civil liability9 [Id. at 55-56.] of petitioner Basilio.

On April 7, 1992, the trial court issued two separate Orders. One denied due course and dismissed Basilio’s appeal for having been filed beyond the reglementary period.10 [Id. at 561.] The other directed the issuance of a writ of execution against him for the enforcement and satisfaction of the award of civil indemnity decreed in judgment on February 4, 1991.11 [Id. at 66-68.]

Aggrieved, petitioner filed a petition for certiorari12 [Id. at 2-21.] under Rule 65 of the Revised Rules of Court with the Court of Appeals, alleging that respondent judge acted without jurisdiction or with grave abuse of discretion in issuing: (1) the Order dated September 16, 1991, denying the petitioner’s motion for reconsideration of the judgment dated February 4, 1991 insofar as the subsidiary liability of the petitioner was concerned, and (2) the Order dated April 7, 1992, directing the issuance of a writ of execution against the petitioner. Before the appellate court, petitioner claimed he was not afforded due process when he was found subsidiarily liable for the civil liability of the accused Pronebo in the criminal case.

The Court of Appeals dismissed the petition in its Decision dated October 27, 1992, disposing as follows: Sppedâ

A motion for reconsideration14 [Records, pp. 578-593.] was filed by the petitioner on November 24, 1992. This was denied in a Resolution15 [Rollo, pp. 60-61.] dated January 5, 1994. Hence this petition for review.

Now, petitioner, in his assignment of errors, avers that respondent Court of Appeals erred:

The issue before us is whether respondent Court of Appeals erred and committed grave abuse of discretion in denying the special civil action under Rule 65 filed by petitioner against the trial court. To resolve it, we must, however, also pass upon the following:

Petitioner asserts that he was not given the opportunity to be heard by the trial court to prove the absence of an employer-employee relationship between him and accused. Nor that, alternatively, the accused was not lawfully discharging duties as an employee at the time of the incident. While these assertions are not moved, we shall give them due consideration.

The statutory basis for an employer’s subsidiary liability is found in Article 103 of the Revised Penal Code.17 [Art. 103. Subsidiary civil liability of other persons. – The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.] This liability is enforceable in the same criminal proceeding where the award is made.18 [Rule 111, Sec. 1: Institution of criminal and civil actions. – When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.] However, before execution against an employer ensues, there must be a determination, in a hearing set for the purpose of 1) the existence of an employer-employee relationship; 2) that the employer is engaged in some kind of industry; 3) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he commits "while" in the discharge of such duties; and 4) that said employee is insolvent.19 [Yonaha vs. CA, 255 SCRA 397, 402 (1996).]

In Vda. De Paman vs. Señeris, 115 SCRA 709, 714 (1982), the Court observed that the drawback in the enforcement of the subsidiary liability in the same criminal proceeding is that the alleged employer is not afforded due process. Not being a party to the case, he is not heard as to whether he is indeed the employer. Hence, we held: Miso

There are two instances when the existence of an employer-employee relationship of an accused driver and the alleged vehicle owner may be determined. One during the criminal proceeding, and the other, during the proceeding for the execution of the judgment. In both instances, petitioner should be given the opportunity to be heard, which is the essence of due process.21 [National Federation of Labor vs. National Labor Relations Commissions, 283 SCRA 275, 284 (1997).]

Petitioner knew of the criminal case that was filed against accused because it was his truck that was involved in the incident.22 [TSN, July 8, 1992, p. 12.] Further, it was the insurance company, with which his truck was insured, that provided the counsel for the accused, pursuant to the stipulations in their contract.23 [Id. at 13.] Petitioner did not intervene in the criminal proceedings, despite knowledge, through counsel, that the prosecution adduced evidence to show employer-employee relationship.24 [Id. at 28.] With the convict’s application for probation, the trial court’s judgment became final and executory. All told, it is our view that the lower court did not err when it found that petitioner was not denied due process. He had all his chances to intervene in the criminal proceedings, and prove that he was not the employer of the accused, but he chooses not to intervene at the appropriate time. Nexâ old

Petitioner was also given the opportunity during the proceedings for the enforcement of judgment. Even assuming that he was not properly notified of the hearing on the motion for execution of subsidiary liability, he was asked by the trial court to make an opposition thereto, which he did on October 17, 1991, where he properly alleged that there was no employer-employee relationship between him and accused and that the latter was not discharging any function in relation to his work at the time of the incident.25 [Rollo, pp. 101-109.] In addition, counsel for private respondent filed and duly served on December 3, 1991, and December 9, 1991, respectively, a manifestation praying for the grant of the motion for execution.26 [Records, pp. 253-254.] This was set for hearing on December 13, 1991. However, counsel for petitioner did not appear. Consequently, the court ordered in open court that the matter be submitted for resolution. It was only on January 6, 1992, that the petitioner’s counsel filed a counter-manifestation27 [Id. at 255-256.] that belatedly attempted to contest the move of the private prosecutor for the execution of the civil liability. Thus, on April 7, 1992, the trial court issued the Order granting the motion for execution of the subsidiary liability. Given the foregoing circumstances, we cannot agree with petitioner that the trial court denied him due process of law. Neither can we fault respondent appellant court for sustaining the judgment and orders of the trial court. Maniâ kx

Accordingly, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated October 27, 1992, in CA-G.R. SP No. 27850 is AFFIRMED. Costs against petitioner.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. Maniksâ