dissenting.
I respectfully dissent. I disagree with the majority that a licensee can be suspended on the basis of a violation extinguished by the Judicial Code.
On September 13, 1988, Edward W. Grubb (Licensee) was charged with violating Section 1543 of the Vehicle Code, 75 Pa.C.S. § 1543 (driving while operating privileges were suspended). On March 28, 1991, Licensee pled guilty by paying the fine and costs related to the suspension. As a result of his plea, the Pennsylvania Department of Transportation (Department) suspended Licensee’s operating privileges for five years as a habitual offender pursuant to the provisions of Section 1542(d) of the Vehicle Code, 75 Pa.C.S. § 1542(d).
Licensee appealed to the trial court, contending that the March 28, 1991 conviction, which resulted from his guilty plea, could not be used as a basis to suspend his license. Because this conviction was entered more than two years after the date of the violation, Licensee contends that Section 5553(e) of the Judicial Code, 42 Pa.C.S. § 5553(e), forecloses using that conviction as the basis of a suspension of his license since Section 5553(e) operates to extinguish the underlying violation making any conviction a nullity. Agreeing with the Department that such a contention is an impermissible collateral attack on the underlying conviction, both the trial court and the majority affirmed. I disagree.
Section 5553(e) provides:
No proceedings shall be held or action taken pursuant to a summary under Title 75 subsequent to two years after the commission of the offense.
Unlike a statute of limitation or a statute of repose which must be affirmatively pled or is waived,1 Section 5553(e) *183removes jurisdiction to hear a Title 75 summary action not heard within two years of the violation, as well as provides an instruction to those hearing those offenses not to take any further action once this section becomes applicable. The effect of this provision is to extinguish, by operation of law, any Title 75 action which has not been acted upon within two years from the date of the violation. Because the cause of action is extinguished, any conviction entered is void ab initio and cannot be used as a basis to take any action against a licensee. When the Department introduces a certified document evidencing that the conviction occurred more than two years after the commission of the violation, Licensee is not collaterally attacking the underlying conviction because there is none to attack.
The majority holds that such an interpretation is not in accord with our previous holdings in Department of Transportation, Bureau of Driver Licensing v. Danks, 114 Pa.Commonwealth Ct. 37, 538 A.2d 120 (1988) and Lewis v. Commonwealth, 73 Pa.Commonwealth Ct. 607, 458 A.2d 1053 (1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742. Danks and Lewis, however, are inapplicable because they held that Section 5553(e) does not preclude the Department from initiating a license suspension more than two years after the offense; not the issue presented in this case that the underlying conviction is a nullity and cannot be used as a basis for suspension.
Because Section 5553(e) of the Judicial Code vitiates any conviction not made within two years of the violation, I would reverse.
. "By definition, statutes of repose 'set a designated event for the statutory period to start running and they provide that at the expiration of the period, any cause of action is barred regardless of the usual reasons for tolling....' The main difference between the two types of statutes, therefore, is that a statute of limitation bars a suit after a cause of action accrues, whereas a statute of repose can operate to bar a suit before a cause of action accrues. This difference stems from the time at which each of the statutes is triggered. A statute of limitations is *183triggered once a breach of duty has occurred, whereas a statute of repose is triggered by a point established by the statute itself, irrespective of a breach of any duty.” The Unsettled Foundation of Construction Projects Statutes of Repose, 30 Duq.L.Rev. 681, 682-683 (footnotes omitted.) Section 5553(e) is neither a statute of limitations nor repose. The filing of a complaint within the time prescribed tolls the barring of the action under either type of statute. Section 5553(e), however, forecloses any action, even though the action has been timely brought. The Superior Court in Commonwealth v. Stover, 372 Pa.Superior Ct. 35, 538 A.2d 1336 (1988), appeal denied, 520 Pa. 604, 553 A.2d 967 (1988), however, in a different factual situation and without much discussion, characterized Section 5553(e) as a statute of limitation.