Short answer. The Court of Appeals can do either. It may require the respondent to file a comment, not a motion to dismiss, within ten days, or it may dismiss the petition outright if it finds it patently without merit, filed just to delay, or raising unsubstantial questions.

What the law says

The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Rule 42, Section 4 — Action on the petition. Read the full provision →

Requiring a comment

Under Section 4, the Court of Appeals may require the respondent to file a comment on the petition, rather than a motion to dismiss, within ten days from notice, giving the respondent a defined and fairly short window to respond directly to the substance of what the petitioner has raised. A ten-day window keeps the case moving without giving the respondent an open-ended period to prepare a response. This ten-day window binds the respondent, not the Court itself; nothing in the section requires the Court to act within any fixed period of its own, and the respondent cannot treat a delayed comment order from the Court as excusing a late response once the order to comment has actually been issued.

Or dismissing the petition outright

Instead of requiring a comment, the Court of Appeals may dismiss the petition on its own if it finds that the petition is patently without merit, that it was prosecuted manifestly for the purpose of delay, or that the questions it raises are too unsubstantial to require any further consideration. These three grounds, lack of merit, delay, and insubstantiality, give the court a reasonably narrow basis for skipping straight to dismissal without first calling for a comment. This authority does not cover a petition that merely presents a weak or losing argument on the merits; patent lack of merit, manifest delay, and insubstantiality describe petitions with an obvious defect on their face, not petitions the Court simply expects to lose after full consideration of the issues.

Why a comment rather than a motion to dismiss, and the screening function of this stage

Framing the respondent's initial response as a comment, rather than allowing a motion to dismiss, keeps that response focused directly on the merits of the petition. Taken together, this section lets the Court of Appeals filter out clearly meritless petitions at an early stage, without necessarily putting every petition through full briefing first. A motion to dismiss could otherwise turn into its own satellite dispute, whereas a comment keeps the respondent's initial input tied directly to the petition's substance. This early filtering binds the Court's own initial screening role; it does not deprive a petitioner of merits review altogether, since a petition that survives this stage still proceeds to full briefing and decision on the actual substance of what was raised.

Related provisions

Note. Statute text quoted on this page is reproduced from the official enactment and is linked to the full provision. The explanation around it is general legal information from Vivas & Nobles Law Office, not legal advice. Whether it applies to your situation depends on facts only a lawyer reviewing them can assess.