Dissenting Opinion by August 30, 1971:
1 dissent. Today the majority holds that this Court is without the authority to consider for itself the merits of this case because a recent Pennsylvania Supreme Court decision upheld the doctrine of sovereign immunity under similar factual circumstances. In doing so, the majority takes an unwarranted narrow position with respect to the responsibilities of intermediate appellate courts in the Commonwealth’s judicial framework. The Superior Court also bows to outmoded tradition. Beckham v. Travelers Insurance Company, 206 Pa. Superior Ct. 488, 214 A. 2d 299 (1965). For my part, I cannot unearth any viable reason aside from a display of fealty to the omnipotence of stare decisis for our failure to recognize the simple facts of life.
This Court has felt so constrained by the Supreme Court’s pronouncements that it is unwilling to discuss the merits. By deciding as it does today, this Court merely acts as a conduit to the Supreme Court. This is not its function as commanded by the citizens and ultimately by legislative enactment. It seems to me that in our functioning as intermediate appellate judges, we have a duty to present our considered reasoning on the merits of this case and in doing so aid the Supreme Court in its final determination. Actual*167ly, the Superior Court assumed this posture in Beckham.
I cannot understand why this Court or the Superior Court would be enslaved so that they must ignore consideration of the merits of legal issues simply because of prior decisions of courts constituted by humans whose thinking and lives change with the times. The Supreme Court will grant allocatur and reverse us if it disagrees. In expressing our concept of the law, we are not usurping its right as the “supreme judicial power of the Commonwealth”. It would seem appropriate and beneficial that a Supreme Court reconsider and reaffirm its position when the majority of the judges on an appellate bench have found reason to differ with that position.
This Court, while probably influenced by the reasoning of the Supreme Court’s prior decisions, should not have refused to consider for itself the merits of the case.
In considering the substantive question raised in this appeal, I am moved by the most persuasive dissent of Justice Roberts in Thomas v. Baird, 433 Pa. 482, 252 A. 2d 653 (1969). Many other jurisdictions have abrogated the doctrine of sovereign immunity and the list grows longer each year. “It can be said with all due respect to those who originally promulgated the rule years ago that the doctrine is ‘no longer just, reasonable nor defensible’ and that the ‘reasons underlying the traditional wide-sweeping rule of sovereign immunity have virtually disappeared in modern society.’ ” 433 Pa. at 486. Pennsylvania has modernized its. legal structure, now it should modernize its legal tenets. .
But even if our courts should decide to retain generally the doctrine of sovereign immunity, the defendant in this action, the Pennsylvania Turnpike Commission, should not be the beneficiary of this protective de*168vice. It is not in reality a part of the sovereign structure of this state. As noted by Justice Roberts in Thomas: “[h]ere we have a turnpike authority which operates almost five hundred miles of super highway over which some forty-eight million vehicles travel each year. In its most recently completed fiscal year [1968] the Pennsylvania Turnpike Commission took in almost $56,000,000 in operating revenues. Existing as it does like any other business corporation save for the fact that its ‘profit’ is paid to the Commonwealth, it would seem a simple task for the commission to assume financial responsibility for its negligent acts. The cost of purchasing insurance or of self-insuring to cover such contingencies can easily be absorbed by the millions of users of the turnpike facilities. This is an especially simple solution when it is realized that the turnpike commission has complete authority for setting the toll charges. It seems to me that none of the reasons advanced in years past for maintaining the sovereign immunity doctrine could possibly apply to the turnpike commission in light of these facts.” 433 Pa. at 486-87. See also the dissenting opinion of the late Justice Musmanno in Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A. 2d 199 (1962). I would reverse.
Judge Manderino joins in this dissent.