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.
2

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.
3

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.
4

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 
5

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).
6

(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. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mr. Tony Zanders, :

Appellant :

:

v. : No. 734 C.D. 2016

:

Judge Gerald M. Bigley :

PER CURIAM O R D E R

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 abovecaptioned matter is AFFIRMED. 

Appellant’s application for reconsideration of an order of the Superior 

Court, dated March 10, 2016, is DENIED.