Chato v. Fortune Tobacco Corp. G.R. No.

141309 1 of 8

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 141309 December 23, 2008
LIWAYWAY VINZONS-CHATO, petitioner,
vs.
FORTUNE TOBACCO CORPORATION, respondent.
RESOLUTION
NACHURA, J.:
It is a fundamental principle in the law of public officers that a duty owing to the public in general cannot give rise
to a liability in favor of particular individuals. The failure to perform a public duty can constitute an individual
wrong only when a person can show that, in the public duty, a duty to himself as an individual is also involved, and
that he has suffered a special and peculiar injury by reason of its improper performance or non-performance.
By this token, the Court reconsiders its June 19, 2007 Decision in this case.
As culled from the said decision, the facts, in brief, are as follows:
On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654), which took effect on July 3,
1993. Prior to its effectivity, cigarette brands 'Champion," "Hope," and "More" were considered local
brands subjected to an ad valorem tax at the rate of 20-45%. However, on July 1, 1993, or two days before
RA 7654 took effect, petitioner issued RMC 37-93 reclassifying "Champion," "Hope," and "More" as
locally manufactured cigarettes bearing a foreign brand subject to the 55% ad valorem tax. RMC 37-93 in
effect subjected "Hope," "More," and "Champion" cigarettes to the provisions of RA 7654, specifically, to
Sec. 142, (c)(1) on locally manufactured cigarettes which are currently classified and taxed at 55%, and
which imposes an ad valorem tax of "55% provided that the minimum tax shall not be less than Five Pesos
(P5.00) per pack."
On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A. Deoferio, Jr. sent via telefax a
copy of RMC 37-93 to Fortune Tobacco but it was addressed to no one in particular. On July 15, 1993,
Fortune Tobacco received, by ordinary mail, a certified xerox copy of RMC 37-93. On July 20, 1993,
respondent filed a motion for reconsideration requesting the recall of RMC 37-93, but was denied in a letter
dated July 30, 1993. The same letter assessed respondent for ad valorem tax deficiency amounting to
P9,598,334.00 (computed on the basis of RMC 37-93) and demanded payment within 10 days from receipt
thereof. On August 3, 1993, respondent filed a petition for review with the Court of Tax Appeals (CTA),
which on September 30, 1993, issued an injunction enjoining the implementation of RMC 37-93. In its
decision dated August 10, 1994, the CTA ruled that RMC 37-93 is defective, invalid, and unenforceable and
further enjoined petitioner from collecting the deficiency tax assessment issued pursuant to RMC No. 37-
93. This ruling was affirmed by the Court of Appeals, and finally by this Court in Commissioner of Internal
Revenue v. Court of Appeals. It was held, among others, that RMC 37-93, has fallen short of the
requirements for a valid administrative issuance.
On April 10, 1997, respondent filed before the RTC a complaint for damages against petitioner in her
private capacity. Respondent contended that the latter should be held liable for damages under Article 32 of
Chato v. Fortune Tobacco Corp. G.R. No. 141309 2 of 8

the Civil Code considering that the issuance of RMC 37-93 violated its constitutional right against
deprivation of property without due process of law and the right to equal protection of the laws.
Petitioner filed a motion to dismiss contending that: (1) respondent has no cause of action against her
because she issued RMC 37-93 in the performance of her official function and within the scope of her
authority. She claimed that she acted merely as an agent of the Republic and therefore the latter is the one
responsible for her acts; (2) the complaint states no cause of action for lack of allegation of malice or bad
faith; and (3) the certification against forum shopping was signed by respondent's counsel in violation of the
rule that it is the plaintiff or the principal party who should sign the same.
On September 29, 1997, the RTC denied petitioner's motion to dismiss holding that to rule on the
allegations of petitioner would be to prematurely decide the merits of the case without allowing the parties
to present evidence. It further held that the defect in the certification against forum shopping was cured by
respondent's submission of the corporate secretary's certificate authorizing its counsel to execute the
certification against forum shopping. x x x x
xxxx
The case was elevated to the Court of Appeals via a petition for certiorari under Rule 65. However, same
was dismissed on the ground that under Article 32 of the Civil Code, liability may arise even if the
defendant did not act with malice or bad faith. The appellate court ratiocinated that Section 38, Book I of
the Administrative Code is the general law on the civil liability of public officers while Article 32 of the
Civil Code is the special law that governs the instant case. Consequently, malice or bad faith need not be
alleged in the complaint for damages. It also sustained the ruling of the RTC that the defect of the
certification against forum shopping was cured by the submission of the corporate secretary's certificate
giving authority to its counsel to execute the same. [Citations and underscoring omitted.]
In the aforesaid June 19, 2007 Decision, we affirmed the disposition of the Court of Appeals (CA) and directed the
trial court to continue with the proceedings in Civil Case No. 97-341-MK.
Petitioner, on July 20, 2007, subsequently moved for the reconsideration of the said decision. After respondent
filed its comment, the Court, in its April 14, 2008 Resolution, denied with finality petitioner's motion for
reconsideration.
Undaunted, petitioner filed, on April 29, 2008 her Motion to Refer [the case] to the Honorable Court En Banc. She
contends that the petition raises a legal question that is novel and is of paramount importance. The earlier decision
rendered by the Court will send a chilling effect to public officers, and will adversely affect the performance of
duties of superior public officers in departments or agencies with rule-making and quasi-judicial powers. With the
said decision, the Commissioner of Internal Revenue will have reason to hesitate or refrain from performing his/her
official duties despite the due process safeguards in Section 228 of the National Internal Revenue Code. Petitioner
hence moves for the reconsideration of the June 19, 2007 Decision.
In its June 25, 2008 Resolution, the Court referred the case to the En Banc. Respondent consequently moved for
the reconsideration of this resolution.
We now resolve both motions.
There are two kinds of duties exercised by public officers: the "duty owing to the public collectively" (the body
politic), and the "duty owing to particular individuals, thus:
Chato v. Fortune Tobacco Corp. G.R. No. 141309 3 of 8

1. Of Duties to the Public. - The first of these classes embraces those officers whose duty is owing
primarily to the public collectively --- to the body politic --- and not to any particular individual; who act
for the public at large, and who are ordinarily paid out of the public treasury.
The officers whose duties fall wholly or partially within this class are numerous and the distinction will be
readily recognized. Thus, the governor owes a duty to the public to see that the laws are properly executed,
that fit and competent officials are appointed by him, that unworthy and ill-considered acts of the legislature
do not receive his approval, but these, and many others of a like nature, are duties which he owes to the
public at large and no one individual could single himself out and assert that they were duties owing to him
alone. So, members of the legislature owe a duty to the public to pass only wise and proper laws, but no one
person could pretend that the duty was owing to himself rather than to another. Highway commissioners
owe a duty that they will be governed only by considerations of the public good in deciding upon the
opening or closing of highways, but it is not a duty to any particular individual of the community.
These illustrations might be greatly extended, but it is believed that they are sufficient to define the general
doctrine.
2. Of Duties to Individuals. - The second class above referred to includes those who, while they owe to the
public the general duty of a proper administration of their respective offices, yet become, by reason of their
employment by a particular individual to do some act for him in an official capacity, under a special and
particular obligation to him as an individual. They serve individuals chiefly and usually receive their
compensation from fees paid by each individual who employs them.
A sheriff or constable in serving civil process for a private suitor, a recorder of deeds in recording the deed
or mortgage of an individual, a clerk of court in entering up a private judgment, a notary public in
protesting negotiable paper, an inspector of elections in passing upon the qualifications of an elector, each
owes a general duty of official good conduct to the public, but he is also under a special duty to the
particular individual concerned which gives the latter a peculiar interest in his due performance.
In determining whether a public officer is liable for an improper performance or non-performance of a duty, it must
first be determined which of the two classes of duties is involved. For, indeed, as the eminent Floyd R. Mechem
instructs, "[t]he liability of a public officer to an individual or the public is based upon and is co-extensive with his
duty to the individual or the public. If to the one or the other he owes no duty, to that one he can incur no liability."
Stated differently, when what is involved is a "duty owing to the public in general", an individual cannot have a
cause of action for damages against the public officer, even though he may have been injured by the action or
inaction of the officer. In such a case, there is damage to the individual but no wrong to him. In performing or
failing to perform a public duty, the officer has touched his interest to his prejudice; but the officer owes no duty to
him as an individual. The remedy in this case is not judicial but political.
The exception to this rule occurs when the complaining individual suffers a particular or special injury on account
of the public officer's improper performance or non-performance of his public duty. An individual can never be
suffered to sue for an injury which, technically, is one to the public only; he must show a wrong which he specially
suffers, and damage alone does not constitute a wrong. A contrary precept (that an individual, in the absence of a
special and peculiar injury, can still institute an action against a public officer on account of an improper
performance or non-performance of a duty owing to the public generally) will lead to a deluge of suits, for if one
man might have an action, all men might have the like-the complaining individual has no better right than anybody
else. If such were the case, no one will serve a public office. Thus, the rule restated is that an individual cannot
Chato v. Fortune Tobacco Corp. G.R. No. 141309 4 of 8

have a particular action against a public officer without a particular injury, or a particular right, which are the
grounds upon which all actions are founded.
Juxtaposed with Article 32 of the Civil Code, the principle may now translate into the rule that an individual can
hold a public officer personally liable for damages on account of an act or omission that violates a constitutional
right only if it results in a particular wrong or injury to the former. This is consistent with this Court's
pronouncement in its June 19, 2007 Decision (subject of petitioner's motion for reconsideration) that Article 32, in
fact, allows a damage suit for "tort for impairment of rights and liberties."
It may be recalled that in tort law, for a plaintiff to maintain an action for damages for the injuries of which he
complains, he must establish that such injuries resulted from a breach of duty which the defendant owed the
plaintiff, meaning a concurrence of injury to the plaintiff and legal responsibility by the person causing it. Indeed,
central to an award of tort damages is the premise that an individual was injured in contemplation of law. Thus, in
Lim v. Ponce de Leon, we granted the petitioner's claim for damages because he, in fact, suffered the loss of his
motor launch due to the illegal seizure thereof. In Cojuangco, Jr. v. Court of Appeals, we upheld the right of
petitioner to the recovery of damages as there was an injury sustained by him on account of the illegal withholding
of his horserace prize winnings.
In the instant case, what is involved is a public officer's duty owing to the public in general. The petitioner, as the
then Commissioner of the Bureau of Internal Revenue, is being taken to task for Revenue Memorandum Circular
(RMC) No. 37-93 which she issued without the requisite notice, hearing and publication, and which, in
Commissioner of Internal Revenue v. Court of Appeals, we declared as having "fallen short of a valid and effective
administrative issuance." A public officer, such as the petitioner, vested with quasi-legislative or rule-making
power, owes a duty to the public to promulgate rules which are compliant with the requirements of valid
administrative regulations. But it is a duty owed not to the respondent alone, but to the entire body politic who
would be affected, directly or indirectly, by the administrative rule.
Furthermore, as discussed above, to have a cause of action for damages against the petitioner, respondent must
allege that it suffered a particular or special injury on account of the non-performance by petitioner of the public
duty. A careful reading of the complaint filed with the trial court reveals that no particular injury is alleged to have
been sustained by the respondent. The phrase "financial and business difficulties" mentioned in the complaint is a
vague notion, ambiguous in concept, and cannot translate into a "particular injury." In contrast, the facts of the case
eloquently demonstrate that the petitioner took nothing from the respondent, as the latter did not pay a single
centavo on the tax assessment levied by the former by virtue of RMC 37-93.
With no "particular injury" alleged in the complaint, there is, therefore, no delict or wrongful act or omission
attributable to the petitioner that would violate the primary rights of the respondent. Without such delict or tortious
act or omission, the complaint then fails to state a cause of action, because a cause of action is the act or omission
by which a party violates a right of another.
A cause of action exists if the following elements are present: (1) a right in favor of the plaintiff by whatever means
and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not
to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff
or constituting a breach of the obligation of defendant to plaintiff for which the latter may maintain an action for
recovery of damages.
The remedy of a party whenever the complaint does not allege a cause of action is to set up this defense in a
motion to dismiss, or in the answer. A motion to dismiss based on the failure to state a cause of action in the
Chato v. Fortune Tobacco Corp. G.R. No. 141309 5 of 8

complaint hypothetically admits the truth of the facts alleged therein. However, the hypothetical admission is
limited to the "relevant and material facts well-pleaded in the complaint and inferences deducible therefrom. The
admission does not extend to conclusions or interpretations of law; nor does it cover allegations of fact the falsity
of which is subject to judicial notice."
The complaint may also be dismissed for lack of cause of action if it is obvious from the complaint and its annexes
that the plaintiff is not entitled to any relief.
The June 19, 2007 Decision and the dissent herein reiterates that under Article 32 of the Civil Code, the liability of
the public officer may accrue even if he/she acted in good faith, as long as there is a violation of constitutional
rights, citing Cojuangco, Jr. v. Court of Appeals, where we said:
Under the aforecited article, it is not necessary that the public officer acted with malice or bad faith. To be liable, it
is enough that there was a violation of the constitutional rights of petitioners, even on the pretext of justifiable
motives or good faith in the performance of duties.
The complaint in this case does not impute bad faith on the petitioner. Without any allegation of bad faith, the
cause of action in the respondent's complaint (specifically, paragraph 2.02 thereof) for damages under Article 32 of
the Civil Code would be premised on the findings of this Court in Commissioner of Internal Revenue v. Court of
Appeals (CIR v. CA), where we ruled that RMC No. 37-93, issued by petitioner in her capacity as Commissioner
of Internal Revenue, had "fallen short of a valid and effective administrative issuance." This is a logical inference.
Without the decision in CIR v. CA, the bare allegations in the complaint that respondent's rights to due process of
law and to equal protection of the laws were violated by the petitioner's administrative issuance would be
conclusions of law, hence not hypothetically admitted by petitioner in her motion to dismiss.
But in CIR v. CA, this Court did not declare RMC 37-93 unconstitutional; certainly not from either the due process
of law or equal protection of the laws perspective. On due process, the majority, after determining that RMC 37-93
was a legislative rule, cited an earlier Revenue Memorandum Circular (RMC No. 10-86) requiring prior notice
before RMC's could become "operative." However, this Court did not make an express finding of violation of the
right to due process of law. On the aspect of equal protection, CIR v. CA said: "Not insignificantly, RMC 37-93
might have likewise infringed on uniformity of taxation;" a statement that does not amount to a positive indictment
of petitioner for violation of respondent's constitutional right. Even if one were to ascribe a constitutional
infringement by RMC 37-93 on the non-uniformity of tax provisions, the nature of the constitutional transgression
falls under Section 28, Article VI-not Section 1, Article III-of the Constitution.
This Court's own summation in CIR v. CA: "All taken, the Court is convinced that the hastily promulgated RMC
37-93 has fallen short of a valid and effective administrative issuance," does not lend itself to an interpretation that
the RMC is unconstitutional. Thus, the complaint's reliance on CIR v. CA-which is cited in, and a copy of which is
annexed to, the complaint-as suggestive of a violation of due process and equal protection, must fail.
Accordingly, from the foregoing discussion, it is obvious that paragraph 2.02 of respondent's complaint loses the
needed crutch to sustain a valid cause of action against the petitioner, for what is left of the paragraph is merely the
allegation that only respondent's "Champion", "Hope" and "More" cigarettes were reclassified.
If we divest the complaint of its reliance on CIR v. CA, what remains of respondent's cause of action for violation
of constitutional rights would be paragraph 2.01, which reads:
2.01. On or about July 1, 1993, defendant issued Revenue Memorandum Circular No. 37-93 (hereinafter
referred to as RMC No. 37-93) reclassifying specifically "Champion", "Hope" and "More" as locally
Chato v. Fortune Tobacco Corp. G.R. No. 141309 6 of 8

manufactured cigarettes bearing a foreign brand. A copy of the aforesaid circular is attached hereto and
made an integral part hereof as ANNEX "A". The issuance of a circular and its implementation resulted in
the "deprivation of property" of plaintiff. They were done without due process of law and in violation of the
right of plaintiff to the equal protection of the laws. (Italics supplied.)
But, as intimated above, the bare allegations, "done without due process of law" and "in violation of the right of
plaintiff to the equal protection of the laws" are conclusions of law. They are not hypothetically admitted in
petitioner's motion to dismiss and, for purposes of the motion to dismiss, are not deemed as facts.
In Fluor Daniel, Inc. Philippines v. EB. Villarosa & Partners Co., Ltd., this Court declared that the test of
sufficiency of facts alleged in the complaint as constituting a cause of action is whether or not, admitting the facts
alleged, the court could render a valid verdict in accordance with the prayer of the complaint. In the instant case,
since what remains of the complaint which is hypothetically admitted, is only the allegation on the reclassification
of respondent's cigarettes, there will not be enough facts for the court to render a valid judgment according to the
prayer in the complaint.
Furthermore, in an action for damages under Article 32 of the Civil Code premised on violation of due process, it
may be necessary to harmonize the Civil Code provision with subsequent legislative enactments, particularly those
related to taxation and tax collection. Judicial notice may be taken of the provisions of the National Internal
Revenue Code, as amended, and of the law creating the Court of Tax Appeals. Both statutes provide ample
remedies to aggrieved taxpayers; remedies which, in fact, were availed of by the respondent-without even having
to pay the assessment under protest-as recounted by this Court in CIR v. CA, viz.:
In a letter, dated 19 July 1993, addressed to the appellate division of the BIR, Fortune Tobacco requested for
a review, reconsideration and recall of RMC 37-93. The request was denied on 29 July 1993. The following
day, or on 30 July 1993, the CIR assessed Fortune Tobacco for ad valorem tax deficiency amounting to
P9,598,334.00.
On 03 August 1993, Fortune Tobacco filed a petition for review with the CTA.
The availability of the remedies against the assailed administrative action, the opportunity to avail of the same, and
actual recourse to these remedies, contradict the respondent's claim of due process infringement.
At this point, a brief examination of relevant American jurisprudence may be instructive.
42 U.S. Code 1983, a provision incorporated into the Civil Rights Act of 1871, presents a parallel to our own
Article 32 of the Civil Code, as it states:
Every person who, under color of any statute, ordinance, regulation, custom, usage, or any State or
Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for
redress.
This provision has been employed as the basis of tort suits by many petitioners intending to win liability cases
against government officials when they violate the constitutional rights of citizens.
Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Investigation, has emerged as the leading case
on the victim's entitlement to recover money damages for any injuries suffered as a result of flagrant and
unconstitutional abuses of administrative power. In this case, federal narcotics officers broke into Bivens' home at
Chato v. Fortune Tobacco Corp. G.R. No. 141309 7 of 8

6:30 a.m. without a search warrant and in the absence of probable cause. The agents handcuffed Bivens, searched
his premises, employed excessive force, threatened to arrest his family, subjected him to a visual strip search in the
federal court house, fingerprinted, photographed, interrogated and booked him. When Bivens was brought before a
United States Commissioner, however, charges against him were dismissed. On the issue of whether violation of
the Fourth Amendment "by a federal agent acting under color of authority gives rise to a cause of action for
damages consequent upon his constitutional conduct," the U.S. Supreme Court held that Bivens is entitled to
recover damages for injuries he suffered as a result of the agents' violation of the Fourth Amendment.
A number of subsequent decisions have upheld Bivens. For instance, in Scheuer v. Rhodes, a liability suit for
money damages was allowed against Ohio Governor James Rhodes by petitioners who represented three students
who had been killed by Ohio National Guard troops at Kent State University as they protested against U.S.
involvement in Vietnam. In Wood v. Strickland, local school board members were sued by high school students
who argued that they had been deprived of constitutional due process rights when they were expelled from school
for having spiked a punch bowl at a school function without the benefit of a full hearing. In Butz v. Economou,
Economou, whose registration privilege as a commodities futures trader was suspended, without prior warning, by
Secretary of Agriculture Earl Butz, sued on a Bivens action, alleging that the suspension was aimed at "chilling"
his freedom of expression right under the First Amendment. A number of other cases with virtually the same
conclusion followed.
However, it is extremely dubious whether a Bivens action against government tax officials and employees may
prosper, if we consider the pronouncement of the U.S. Supreme Court in Schweiker v. Chilicky, that a Bivens
remedy will not be allowed when other "meaningful safeguards or remedies for the rights of persons situated as (is
the plaintiff)" are available. It has also been held that a Bivens action is not appropriate in the civil service system
or in the military justice system.
In Frank Vennes v. An Unknown Number of Unidentified Agents of the United States of America, petitioner Vennes
instituted a Bivens action against agents of the Internal Revenue Service (IRS) who alleged that he (Vennes) owed
$250,000 in tax liability, instituted a jeopardy assessment, confiscated Vennes' business, forced a total asset sale,
and put Vennes out of business, when in fact he owed not a dime. The U.S. Court of Appeals, Eighth Circuit, ruled:
The district court dismissed these claims on the ground that a taxpayer's remedies under the Internal
Revenue Code preclude such a Bivens action. Vennes cites to us no contrary authority, and we have found
none. Though the Supreme Court has not addressed this precise question, it has strongly suggested that the
district court correctly applied Bivens:
When the design of a Government program suggests that Congress has provided what it considers
adequate remedial mechanisms for constitutional violations that may occur in the course of its
administration, we have not created additional Bivens remedies.
xxxx
Congress has provided specific and meaningful remedies for taxpayers who challenge overzealous tax
assessment and collection activities. A taxpayer may challenge a jeopardy assessment both administratively
and judicially, and may sue the government for a tax refund, and have authorized taxpayer actions against
the United States to recover limited damages resulting from specific types of misconduct by IRS
employees. These carefully crafted legislative remedies confirm that, in the politically sensitive realm of
taxation, Congress's refusal to permit unrestricted damage action by taxpayers has not been inadvertent.
Thus, the district court correctly dismissed Vennes's Bivens claims against IRS agents for their tax
Chato v. Fortune Tobacco Corp. G.R. No. 141309 8 of 8

assessment and collection activities.

In still another Bivens action, instituted by a taxpayer against IRS employees for alleged violation of due process
rights concerning a tax dispute, the U.S. District Court of Minnesota said:
In addition, the (Tax) Code provides taxpayers with remedies, judicial and otherwise, for correcting and
redressing wrongful acts taken by IRS employees in connection with any collection activities. Although
these provisions do not provide taxpayers with an all-encompassing remedy for wrongful acts of IRS
personnel, the rights established under the Code illustrate that it provides all sorts of rights against the
overzealous officialdom, including, most fundamentally, the right to sue the government for a refund if
forced to overpay taxes, and it would make the collection of taxes chaotic if a taxpayer could bypass the
remedies provided by Congress simply by bringing a damage suit against IRS employees.
American jurisprudence obviously validates the contention of the petitioner.
Finally, we invite attention to Section 227, Republic Act No. 8424 (Tax Reform Act of 1997), which provides:
Section 227. Satisfaction of Judgment Recovered Against any Internal Revenue Officer. - When an action is
brought against any Internal Revenue officer to recover damages by reason of any act done in the
performance of official duty, and the Commissioner is notified of such action in time to make defense
against the same, through the Solicitor General, any judgment, damages or costs recovered in such action
shall be satisfied by the Commissioner, upon approval of the Secretary of Finance, or if the same be paid by
the person sued shall be repaid or reimbursed to him.
No such judgment, damages or costs shall be paid or reimbursed in behalf of a person who has acted
negligently or in bad faith, or with willful oppression.
Because the respondent's complaint does not impute negligence or bad faith to the petitioner, any money judgment
by the trial court against her will have to be assumed by the Republic of the Philippines. As such, the complaint is
in the nature of a suit against the State.
WHEREFORE, premises considered, we GRANT petitioner's motion for reconsideration of the June 19, 2007
Decision and DENY respondent's motion for reconsideration of the June 25, 2008 Resolution. Civil Case No. CV-
97-341-MK, pending with the Regional Trial Court of Marikina City, is DISMISSED.
SO ORDERED.
Puno, C.J., Quisumbing, Carpio, Austria-Martinez, Carpio Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr.,
Reyes, Leonardo-De Castro, and Brion, JJ., concur.
Ynares-Santiago, J., see dissenting opinion.
Corona, J., on leave.