Riedel v. HUMAN REL. COM'N OF READING

OPINION

NIGRO, Justice.

Appellant, the Human Relations Commission of the City of Reading (“Commission”), appeals from the order of the Commonwealth Court reversing the trial court’s determination that Appellee Augustus Riedel had committed an unlawful housing practice in violation of the City of Reading’s Human Relations Ordinance (“Ordinance”). For the reasons outlined below, we reverse.

From September, 1992 through November, 1994, Millicent Ferrer, who is Hispanic, and her two young children were tenants in an apartment in a row home in the City of Reading. The Ferrer family lived directly above Appellee, who is Caucasian. Beginning in, late 1993, Appellee began harassing the Ferrer family, making derogatory and hostile remarks to them in response to what he considered to be excessive noise coming from the Ferrers’ apartment. These remarks included frequent denigrating references to the Ferrer family’s national origin. Appellee’s harassment of the Ferrer family continued until they moved from their apartment in November, 1994.

Ms. Ferrer filed a complaint against Appellee with the Commission, alleging that Appellee had violated the unlawful housing practice provisions of the Ordinance. At the hearing before the Commission, Appellee’s conduct was graphically described by Ms. Ferrer’s friend, Joseph Santana:

I personally heard Mr. [Riedel] address Mrs. Ferrer as an f—ing Puerto Rican whore on many occasions, you need to get your f—ing ass out of here. This is America. This is not a place for you. Go back to where you came from ... I could remember I heard Mr. Riedel addressing the boy as you are nothing but a f—ing Puerto Rican - head.

N.T., 1/23/96, at 45.

The Commission found, among many things, that Appellee’s conduct was of a threatening nature and that it had been designed to force the Ferrer family to move from their apartment. The Commission concluded that Appellee had engaged in an unlawful discriminatory housing practice by interfering with Ms. Ferrer’s right to the quiet enjoyment of her apartment in violation of section 155.07(2) of the Ordinance (“section 155.07(Z)”), which makes it unlawful:

for any person to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by this Ordinance.

The Commission directed Appellee to pay a $500.00 fine and to write a letter of apology to Ms. Ferrer. Appellee filed an appeal with the trial court, contending: that his actions did not constitute a discriminatory housing practice under the Ordinance, that the Reading Commission’s findings of fact were not supported by the record, that two of the Commission’s members who signed the decision were actually not present at the hearing, and that the Commission’s decision was unjustified under the facts of the case. The trial court dismissed Appellee’s appeal. Appellee then filed an appeal with the Commonwealth Court, raising the same issues that he had raised before the trial court.

The Commonwealth Court, however, did not address the issues raised by Appellee. Rather, the court sua sponte considered the issue of whether the Commission had the authority to enact and enforce section 155.07(Z) of its Ordinance since no corresponding provision, proscribing the same discriminatory conduct as that prohibited by section 115.07(Z), existed in the Pennsylvania Human Relations Act (“PHRA”). The court found that local commissions, such as the Reading Human Relations Commission, only have the authority to proscribe discriminatory conduct which is also rendered unlawful by the PHRA. Concluding that the conduct proscribed by section 155.07(Z) was not also proscribed by the PHRA, which “does not include-among unlawful discrimination practices the interference with a person’s quiet enjoyment of his apartment, even if accompanied by racial epithets,” Riedel v. Reading Human Relations Commission, 703 A.2d 1072, 1075 (Pa.Commw.1997), the Commonwealth Court found that the Commission had exceeded its authority by prohibiting Appellee’s conduct and reversed the order of the trial court.

The Commission filed a Petition for Allowance of Appeal. We granted allocatur to determine whether the Commonwealth Court properly raised the issue of the Commission’s authority to act in this case sua sponte and if so, whether the Commonwealth Court’s determination that the Commission had exceeded its authority by enacting and enforcing section 155.07(Z) was proper.

As a threshold issue, the Commission argues that the Commonwealth Court improperly sua sponte raised and addressed the issue of whether the Commission had exceeded its authority by enacting and enforcing section 155.07(Z) because an analogous provision does not exist in the PHRA. In making its argument, the Commission notes that Appellee did not raise this issue in his brief to the lower court, in his statement of matters complained of on appeal, or in his brief to the Commonwealth Court. Therefore, according to the Commission, Appellee has not properly preserved the issue for appellate review.

It is axiomatic that issues not preserved for appellate review will not be addressed by the appellate court. See Pa. R.A.P. 302. “Issues not preserved for appellate review cannot be considered by an appellate court, even where the alleged error involves a basic or fundamental mistake.” Arthur v. Kuchar, 546 Pa. 12, 21, 682 A.2d 1250, 1254 (1996); see also Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d 777, 779 (1975) (judgment cannot be reversed on theory that was not presented to the trial court). Here, while Appellee has consistently maintained that his actions do not constitute a violation under the Ordinance, at no time did he challenge the authority of the Commission to enact the applicable provision of the Ordinance or claim that such provision was otherwise invalid. Thus, because the record reflects that Appellee failed to raise the issue of the Commission’s authority to act before the lower courts, we agree with the Commission that Appellee has not properly preserved this issue for appellate review.

However, although Appellee makes no attempt to argue why it was proper for the Commonwealth Court to reverse on the basis of an issue that it had raised sua sponte, we recognize that a court may, at any time, raise the issue of an agency’s jurisdiction sua sponte. See Blackwell v. State Ethics Comm’n, 523 Pa. 347, 358, 567 A.2d 630, 636 (1989) (issues concerning an agency’s jurisdiction are never waived and can be raised sua sponte by court); LeFlar v. Gulf Creek Industrial Park # 2, 511 Pa. 574, 581, 515 A.2d 875, 879 (1986) (issue of subject matter jurisdiction may be raised at any time by parties or sua sponte by appellate court); Daly v. School District of Darby Township, 434 Pa. 286, 289, 252 A.2d 638, 640 (1969) (same).

We find, however, that the Commonwealth Court’s sua sponte ruling on the Ordinance was not a jurisdictional determination but rather, involved the Commission’s authority to act in this particular case. In summarizing the distinction between an agency’s authority to act and its jurisdiction, this Court has stated:

Jurisdiction and power are not interchangeable although judges and lawyers often confuse them—Hellertown Borough Referendum Case, 354 Pa. 255, 47 A.2d 273 (1946). Jurisdiction relates solely to the competency of the particular court or administrative body to determine controversies of the general class to which the case then presented for its consideration belongs. Power, on the other hand, means the ability of a decision-making body to order or effect a certain result.

Delaware River Port Auth. v. PA. Public Utility Commission, 408 Pa. 169, 178, 182 A.2d 682, 686 (1962); see also Beltrami Enterprises, Inc. v. Commonwealth of PA, Dep’t of Environmental Resources, 159 Pa.Cmwlth. 72, 682 A.2d 989, 993 (1993) (fact that administrative agency may not have power to afford relief in particular case presented is of no moment to determination of its jurisdiction over general subject matter of controversy).

The Commission clearly has jurisdiction over the general subject matter presented by this case, i.e. whether an unlawful housing practice has been committed. In its opinion below, the Commonwealth Court did not in any way suggest that the Commission did not retain jurisdiction to consider whether Appellee had engaged in discriminatory conduct, but rather, found that it did not have the authority to proscribe the particular conduct committed by Appellee. See Delaware River Port Authority, supra (Public Utility Commission has general' jurisdiction over allocation of costs resulting from construction of crossings although it has no power to award relocation costs to non-transportation utilities since legislature has not granted it authority to do so); Yezerski v. Fong, 58 Pa.Cmwlth. 566, 428 A.2d 736, 737 (1981) (fact that adjudicatory body could not grant relief in particular case had no bearing on whether court had jurisdiction to inquire into general class to which case presented belonged, i.e. cases of commitments ordered pursuant to the MHPA); PA State Troopers Ass’n v. PLRB, 671 A.2d 1183, 1187 (Pa. Commw.1996) (PLRB has jurisdiction to decide whether unfair labor practice has been committed, and continuing federal court jurisdiction over consent decree does not divest PLRB of jurisdiction, regardless of whether it ultimately finds that unfair labor practice occurred in particular case); Cf. First Judicial District v. PA. Human Relations Commission, 556 Pa. 258, 727 A.2d 1110 (1999) (Because of separation of powers doctrine, Human Relations Commission has no jurisdiction to adjudicate any complaints filed against judicial personnel).

Thus, we find that the Commonwealth Court improperly-reversed the trial court’s order on the basis of a waived issue that the court raised sua sponte. Since the issue did not raise a matter of the Commission’s jurisdiction, the Commonwealth Court could not properly sua sponte raise the issue under the jurisdictional exception to the waiver rule.¹ Accordingly, we reverse the Order of the Commonwealth Court and remand for consideration limited to those issues that Appellee properly preserved for review before that court. Jurisdiction relinquished.

Justices CAPPY and SAYLOR file concurring opinions.

1 . We note that our decision today does not in any way address the merits of the issue of whether local human relations commissions have the authority to proscribe discriminatory conduct which is not rendered unlawful by the PHRA.