             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mr. Tony Zanders,                        :
                       Appellant         :
                                         :
                v.                       :   No. 734 C.D. 2016
                                         :   Submitted: July 20, 2018
Judge Gerald M. Bigley                   :


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                  FILED: October 29, 2018

                 Tony Zanders, pro se, appeals an order of the Court of Common Pleas
of Allegheny County (trial court) that dismissed his complaint for tort damages
against the Honorable Judge Gerald M. Bigley (Retired). The trial court held that to
the extent the complaint requested a release from custody, it was untimely under the
Post Conviction Relief Act.1 It also held that the request for monetary damages was
frivolous because Judge Bigley had judicial immunity and because the complaint did
not state a cause of action. Discerning no error in the trial court’s determination, we
affirm.
                Zanders is incarcerated at State Correctional Institution (SCI) Benner
Township. On October 27, 2015, he filed a form complaint bringing claims for
“false imprisonment, slave trade, human trafficking, malicious persecution and
prosecution.” Complaint at ¶3. The complaint seeks damages of $29,097,539 and
Zanders’ immediate release from custody.
                The complaint does not contain any factual averments. In his appeal,
however, Zanders directs the Court to a six-page email attached to the complaint,

1
    42 Pa. C.S. §§9541-9546.
dated January 22, 2006. The author and recipient of the email are named but their
connection to Zanders is unknown.2 Zanders calls the email an “Investigative
Journalist Report.” Notice of Appeal ¶10(G). Zanders complains that the trial court
erred in not considering this email attachment to his complaint.
                The email recounts that Zanders was arrested in 1981 for the murder of
his brother, Ernest Richards, and that Judge Bigley presided over his criminal jury
trial. At trial, Zanders sought to suppress his inculpatory statements to police on
grounds, inter alia, that a police officer coerced the statements by hypnosis and other
means. Judge Bigley denied the suppression motion. Zanders was convicted on July
30, 1982, and sentenced to life imprisonment by Judge Bigley. Since 1981, Zanders
has maintained his innocence. According to the email, another individual, whose
fingerprints were found on the body and who drove the murder victim’s car for
several days after the murder, was never investigated. Further, Zanders produced an
alibi witness. Family members, who once believed Zanders to be guilty, no longer
do.
                On December 18, 2015, the trial court issued a “Notice of Intention to
Dismiss Pleading Containing Claim Under P.C.R.A.” Original Record, Item No. 4
at 1. The Notice stated that on July 6, 1984, the Superior Court affirmed Zanders’
life sentence. Since then, Zanders has filed several Post Conviction Relief Act
petitions. All have been denied. The Notice further stated that because Zanders was
seeking relief from continued incarceration, his so-called complaint would be treated
as a petition under the Post Conviction Relief Act and be dismissed as time-barred.
Finally, the Notice stated that the claim for money damages was frivolous because
Judge Bigley has judicial immunity.


2
    The email was sent by Bridget DiCosmo to Bill Moushey.
                                               2
               On January 11, 2016, the trial court issued an order dismissing the
complaint for the reasons stated in the Notice of Intention to Dismiss. Zanders’
request to proceed in forma pauperis was dismissed as moot.
               Zanders appealed to the Superior Court, which transferred his appeal to
this Court. On appeal,3 Zanders complains that the trial court erred because he seeks
recompense for violations of his constitutional rights for which, he argues, there is
no judicial immunity. He believes he has a default judgment because Judge Bigley
did not file a timely answer. Zanders further argues that he filed a civil complaint
not a Post Conviction Relief Act petition.
               Judge Bigley, by the Administrative Office of Pennsylvania Courts,
responds that because Zanders sought leave to proceed in forma pauperis, the trial
court was authorized to dismiss the claim as frivolous even without an answer.
Further, the trial court correctly found Zanders’ complaint to be frivolous. Judge
Bigley argues that to the extent Zanders seeks release from custody, his claim is
time-barred under the Post Conviction Relief Act. To the extent he seeks monetary
damages, his claim is barred by judicial immunity.4
               In forma pauperis applications are governed by the Pennsylvania Rules
of Civil Procedure. Rule No. 240(j)(1) states as follows:
               If, simultaneous with the commencement of an action or
               proceeding or the taking of an appeal, a party has filed a petition
               for leave to proceed in forma pauperis, the court prior to acting
               upon the petition may dismiss the action, proceeding or appeal if



3
  Our review determines whether constitutional rights were violated, whether the trial court abused
its discretion, and whether the trial court committed an error of law. Lichtman v. Glazer, 111 A.3d
1225, 1227 n.4 (Pa. Cmwlth. 2015).
4
  The Administrative Office of Pennsylvania Courts observes that the complaint lacks factual
averments. As such, on its face, it fails to state a viable claim.
                                                3
               the allegation of poverty is untrue or if it is satisfied that the
               action, proceeding or appeal is frivolous.

PA. R.C.P. NO. 240(j)(1). “The courts define a frivolous action or proceeding as one
‘lack[ing] an arguable basis either in law or in fact.’” Whitaker v. Wetzel, 170 A.3d
568, 573 (Pa. Cmwlth. 2017) (quoting Neitzke v. Williams, 490 U.S. 319, 325
(1989)).
               Judicial immunity protects judicial officers from lawsuits arising from
judicial acts. This Court has explained the doctrine as follows:
               [J]udges are immune from liability when the judge has
               jurisdiction over the subject matter before him and he is
               performing a judicial act…. Judges are absolutely immune from
               liability for damages when performing judicial acts, even if their
               actions are in error or performed with malice, provided there is
               not clear absence of all jurisdiction over the subject matter and
               person….

Logan v. Lillie, 728 A.2d 995, 998 (Pa. Cmwlth. 1999) (internal citations omitted).
Judicial immunity protects a judge from damage suits even where it is alleged that
the judge acted with malice or convicted a defendant of a non-existent crime. Stump
v. Sparkman, 435 U.S. 349, 356-57 (1978). Only a “clear absence of jurisdiction”
can dissolve immunity. Guarrasi v. Scott, 25 A.3d 394, 405 n.11 (Pa. Cmwlth.
2011).
               Pennsylvania Rule of Civil Procedure No. 240(j)(1) authorized the trial
court, sua sponte, to review Zanders’ complaint and dismiss it as frivolous.5 Here,

5
  Technically, judicial immunity is an affirmative defense. PA. R.C.P. NO. 1030(a). Here, the trial
court raised it sua sponte. However, “a governmental party is permitted to raise immunity at any
time in the process, even at the appellate stage, because the defense is non-waivable.” Taylor v.
City of Philadelphia, 692 A.2d 308, 313 (Pa. Cmwlth.), aff’d, 699 A.2d 730 (Pa. 1997). Here, the
Administrative Office of Pennsylvania Courts has raised the defense of judicial immunity on
behalf of Judge Bigley in its brief to this Court and the operative facts establish that the defense


                                                 4
Zanders’ claims against Judge Bigley were based on rulings he made while presiding
over a criminal trial, over which Judge Bigley unquestionably had jurisdiction. His
rulings constituted judicial acts. Logan, 728 A.2d at 998-99. Accordingly, the trial
court properly concluded that Judge Bigley is immune from Zanders’ claims and
dismissed the complaint as frivolous.
              Because the complaint seeks Zanders’ release from custody, the trial
court treated the complaint as a petition presented under the Post Conviction Relief
Act. The trial court held that because Zanders’ 1982 life sentence was affirmed by
the Superior Court on July 6, 1984, his petition was time-barred.
              Section 9545 of the Post Conviction Relief Act sets forth the statute of
limitations for seeking post-conviction relief. It states, in relevant part, as follows:
              [(b)](1) Any petition under this subchapter, including a second
              or subsequent petition, shall be filed within one year of the date
              the judgment becomes final, unless the petition alleges and the
              petitioner proves that:
                     (i) the failure to raise the claim previously was the
                     result of interference by government officials with
                     the presentation of the claim in violation of the
                     Constitution or laws of this Commonwealth or the
                     Constitution or laws of the United States;
                     (ii) the facts upon which the claim is predicated
                     were unknown to the petitioner and could not have
                     been ascertained by the exercise of due diligence; or
                     (iii) the right asserted is a constitutional right that
                     was recognized by the Supreme Court of the United
                     States or the Supreme Court of Pennsylvania after
                     the time period provided in this section and has been
                     held by that court to apply retroactively.


applies. Compare Dyer v. Meacham (Pa. Cmwlth., No. 2055 C.D. 2016, filed February 13, 2018)
(unreported) (noting that judicial immunity is non-waivable but noting that a court-appointed
psychologist’s claim for judicial immunity required a hearing).
                                             5
               (2) Any petition invoking an exception provided in paragraph
               (1) shall be filed within 60 days of the date the claim could have
               been presented.
               (3) For purposes of this subchapter, a judgment becomes final
               at the conclusion of direct review, including discretionary review
               in the Supreme Court of the United States and the Supreme Court
               of Pennsylvania, or at the expiration of time for seeking the
               review.

42 Pa. C.S. §9545(b)(1)-(3) (emphasis added). Thus, Zanders had one year from the
date his judgment became final to file a petition, 42 Pa. C.S. §9545(b)(1), and his
judgment became final at “the conclusion of direct review,” which was on July 6,
1984. The time for seeking post-conviction relief has passed.
               As recited above, the period for filing a petition for post-conviction
relief can be extended in some circumstances such as where the petitioner can prove
interference by government officials; the facts underlying the claim were unknown
during the one-year period; or a constitutional right not recognized by the courts
until after the one-year period was extinguished and is determined to apply
retroactively. 42 Pa. C.S. §9545(b)(1)(i)-(iii). Zanders’ complaint, or petition, does
not assert any of these exceptions. As such, the time for filing cannot be extended.
Therefore, the trial court did not err in holding that Zanders’ claim is time-barred
under the Post Conviction Relief Act.
               Accordingly, the order of the trial court is affirmed.6




6
  Additionally, on March 28, 2016, Zanders filed an application for reconsideration of the Superior
Court’s Order of March 10, 2016, dismissing his application for a stay of his appeal as moot.
Zander requested a stay because he believed an arbitration action was still pending before the trial
court. The Superior Court denied the stay for the stated reason that there was no pending
arbitration action. Because the application for reconsideration offers no support for the assertion
that there is pending arbitration action, we deny his application for reconsideration.
                                                 6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mr. Tony Zanders,                   :
                    Appellant       :
                                    :
           v.                       :     No. 734 C.D. 2016
                                    :
Judge Gerald M. Bigley              :


PER CURIAM                         ORDER

           AND NOW, this 29th day of October, 2018, the order of the Court of
Common Pleas of Allegheny County, dated January 11, 2016, in the above-
captioned matter is AFFIRMED.
           Appellant’s application for reconsideration of an order of the Superior
Court, dated March 10, 2016, is DENIED.
