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 t he request for monetary damages was
frivolous because Judge Bigley had judicial immunity and because the complaint did

not st ate a cause of action. Discerning no error in the trial court’s determination, we

affirm.

Zanders is incarcerated at State Correctional Institution (SCI) Benner

Townshi p. On October 27, 2015, h e filed a form complaint bringing cla i ms for

“false imprison ment, 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,

h owever, 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 th is email attachment to his complaint

.

The email recounts that Zanders was arrested in 1981 for the murder of
his brother, E rnest Richards

, and that Judge Bigley presided over his criminal jury
trial. At trial, Zanders sou ght 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 foun d 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 tr ial court issued a “Notice of Intention to
Dismiss Pleading Containing Claim Under P.C.R.A. ” Original Record

, Item No. 4

at 1

. The N otice stated that on July 6, 1984, the Superior Court affirmed Zanders’

life sentence

. Since then , Zanders has filed several Post Conviction Relief Act

pet itions. All have been denied. The N otice 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 Ac t 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 Intent ion 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 tria l court erred beca use 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 compla int

not a Post Conviction Relief Act petition

.

Judge Bigley, by the Administrative Office of Pennsylvania Courts,
respond s that because Zanders sought leave to proceed in forma pauperis

, the trial

court was authorized to dis miss the claim as frivolous even without an answer

. Further, t he trial court correctly found Zanders ’ complaint to be frivolous. Judge
Bigley argues that t o the extent Zanders seeks release from custody , his claim is

time

- barred under the Post Conviction Re lief 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 Rule s
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 constitution al rights were violated, whether the trial court abused its discretion, and whether the trial court committed an error of law. L ichtman 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 i s satisfied that the action, proceeding or appeal is frivolous.

P A

. R.C.P. N O . 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. Cmwlt h. 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 h as 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 act ed with malice or convicted a defendant of a non

- existent crime. St u mp v. Sparkman , 435 U.S. 349, 35 6

- 5 7 (1978). Only a “clear absence of jurisdiction”
can dissolve immunity. Guarrasi v. Scott , 25 A.3d 394 , 405 n.11 (Pa. Cmwlth.
2011). Pennsylvania Ru le 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. P A

. R.C.P. N O

. 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 Court s 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 defense5

Zanders ’ c laims against Judge Bigley were based on rulings he made while presiding
over a criminal trial, over whi ch Judge Bigley unquestionably had jurisdiction . H is
rulings constituted judicial ac ts

. 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 t he 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 wa s 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 cou ld 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 s ection 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 b ecomes 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 adde d). Thus, Zanders had one year f rom 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. T he 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 tha t 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 recons ideration of the Superior Court’s Orde r 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 Co urt denied the stay for the stated reason that th ere was no pend ing arbitration action. Because t he application for reconsideration offe rs no support for the assertion that there is pend ing ar

bitration 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 29 th 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 a pplication for reconsideration of an order of the Superior
Court, dated March 10, 2016, is DENIED.