Dissenting Opinion by
Me. Justice Robeets :I join in Mr. Justice Nix’s dissent for the reasons stated therein as well as for the reasons set out in my dissenting opinion in Thomas v. Baird, 433 Pa. 482, 485, 252 A. 2d 653, 655 (1969).
As Mr. Justice Nix recently stated in his dissenting opinion (in which I joined) in Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 187, 301 A. 2d 849, 854 (1973) : “[T]he language of the Constitution [Article I, Section 11] itself fails to provide any basis for the majority’s assumption that in Pennsylvania this immunity [sovereign immunity] is constitutionally mandated. ... To the contrary, Article I, Section 11 merely sets forth the mechanism by which the state may waive this power [immunity from suit]. . . . The Constitution is therefore neutral—it neither requires nor prohibits sovereign immunity. It merely provides that the presence or absence of sovereign immunity shall be decided in a non-constitutional manner.” (Emphasis added) (Footnote omitted).
The majority today, however, reasserts that “Article I, Section 11 of our Constitution compels the conclusion . . . that this Commonwealth’s immunity is constitutionally, not judicially, mandated . . .” and that the question of whether “. . . sovereign immunity should be modified in this Commonwealth is a legislative question.” Despite the majority’s absolute pronouncement that any modification in the doctrine of sovereign immunity must originate with the Legislature, this Court, only recently, in Biello, supra, “modified” the doctrine *578by holding, without specific legislative direction, that the Commonwealth is not immune from suit where it engages in performing “proprietary functions.” Through judicial action, this Court wisely narrowed, the heretofore unlimited, scope of state immunity. However, Biello obviously negates the majority’s present assertion that sovereign immunity is constitutionally ordained and alterable only by the Legislature.
Having moved in the proper direction in Biello, there is no rational reason why the majority could not and should not now judicially abrogate the doctrine of sovereign immunity in toto, or at the least, refuse to apply it, where, as here, an instrumentality of the Commonwealth has obtained liability insurance (at the command of the Legislature) to compensate those injured through the fault of its agents.*
Twenty-one states, eight through judicial action, have now abolished the concept of state immunity. Nine others have partially abrogated the doctrine, and eight others have abolished it where (as here) the state (or its instrumentalities) has obtained insurance. American Law Institute, Restatement of Law Second, Torts, p. 21 (Tentative Draft 19, March 30, 1973). Despite this overwhelming rejection of sovereign immunity, the majority continues to adhere to age old precedent which has long ago lost any justification in twentieth century society. See Biello, supra (dissenting opinion). “[W]hen precedent is examined in the light of modem reality and it is evident that the reason for the precedent no longer exists, the abandonment of the precedent is not a destruction of stare decisis but rather a fulfillment of its purpose. Stare decisis is not a confining phenomenon but rather a principle of law. And when the application of this principle will *579not result in justice, it is evident that the doctrine is not properly applicable.” Smith v. State, 93 Idaho 795, 801, 473 P. 2d 937, 943 (1970). See also Niederman v. Brodsky, 436 Pa. 401, 261 A. 2d 84 (1970) (rejects the “impact” rule); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A. 2d 193 (1965) (rejects the doctrine of charitable immunity); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796 (1964) (rejects “place of wrong” test as the choice of law doctrine in Pennsylvania). It is all too clear that the majority’s application of sovereign immunity here has created an unjust result.
I dissent.
Mr, Justice Nix and Mr. Justice Manderino join in this dissenting opinion.Cf. Falco v. Pados, 444 Pa. 372, 282 A. 2d 351 (1971); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A. 2d 193 (1965).