dissenting.
I respectfully dissent. The majority’s af-firmance of the decision of the Department of Public Welfare is based on our Supreme Court’s decision in Department of Transportation v. Mitchell, 517 Pa. 203, 535 A.2d 581 (1987). However, because of the unique nature of the contract at issue in the present matter, I do not believe that Mitchell is controlling.
As noted by the majority, the agreement at issue in Mitchell was an arms-length contract for the leasing of construction equipment. In contrast, the Provider Agreement in the matter herein had the effect of establishing an “agency” on behalf of the sovereign to accomplish the task of assisting elderly residents of the Commonwealth living on fixed incomes in obtaining prescription drugs. As such, Calabro was acting as an “agent” of the Commonwealth, and his obligations under the Provider Agreement were not analogous to those of parties to arms-length contracts for the provision of goods. As an “agent” of the Commonwealth, Calabro delivered the relevant services, thereby enabling the Commonwealth to attain the objective of the PACE program.
In light of the important governmental purpose that the Provider Agreement serves, I believe that an affirmance of the decision rendered by the Department of Public Welfare poses a threat to the continued stability of the PACE program. The imposition of liability in the absence of injury may well deter or impede other “agents” from participating in the program. While I do not condone Calabro’s failure to renew his license, I disagree that the sovereign is entitled to full restitution where it incurred no harm and enjoyed the benefit of the services of its “agent.” Accordingly, I would vacate and remand the order of the Department of Public Welfare.