Crack'd Egg asks court to allow maskless customers in restaurant

An attorney for the Crack’d Egg on Monday asked a Pennsylvania appellate court to allow the restaurant to disregard a mask mandate and other state-ordered covid-19 mitigation measures pending appeal.

Citing testimony that his client will not be able to maintain her Brentwood business if she can’t operate at 100%, attorney James Cooney told the Commonwealth Court that they will likely prevail on appeal.

“Really, this case is about my client’s stand against government tyranny,” Cooney said.

In February, Allegheny County Common Pleas Judge John McVay ordered Kimberly Waigand, the owner of the Crack’d Egg, to follow the state-issued covid-19 mitigation measures or close.

Waigand, who has spoken extensively about her dissatisfaction at the government mandates, testified that she would “never” require masks.

The restaurant, along Brownsville Road in Brentwood’s main business district, has remained closed since then.

To prevail on a motion to stay pending appeal at the Commonwealth Court, Crack’d Egg must show a likelihood they will win the case and that they will suffer irreparable harm without a stay.

Cooney argued to Commonwealth Court Judge Renee Cohn Jubilerer during a telephone hearing that the state’s mitigation measures — masks, social distancing and gathering limits — were not properly passed in the rule-making process of the legislature.

Under current guidelines, restaurants may operate at only 25% capacity, unless they follow a self-certification process assuring the health department they will enforce mitigation orders. In that case, they may operate at 50% capacity.

Judge Cohn Jubilerer asked Cooney, “Has there been any attempt to self-certify?”

“No, your honor,” he responded. “Because my client doesn’t believe the order to wear face masks is constitutional.”

“I see. OK,” the judge replied.

She then asked Cooney to further explain Waigand’s objection to the mask mandate.

“It’s a government mandate declared without any fact-finding, without scientific input, without public hearing,” he answered. “The government can’t just, by executive fiat, tell my client or anyone else they have to wear a face mask.”

“OK. Thank you very much,” Judge Cohn Jubilerer responded.

Vijya Patel, who represents the Allegheny County Health Department in the case, argued that the governor does have authority to declare a disaster for the pandemic.

“The commonwealth is not attempting to shut down the Crack’d Egg,” Patel said. “Crack’d Egg may not like these parameters, but they are not prohibited from doing business.”

She further argued to the court that financial harm is not enough to rise to the level of irreparable harm for the restaurant.

But Cooney said his client’s constitutional rights are being violated, as well.

“To say there’s no harm other than economic harm is not true,” Cooney said. “It’s been more than a year since the disaster was declared.

“The government has had the time to engage in the rule-making process. It’s no longer an emergency.”

Judge Cohn Jubilerer then asked, “Is it true beginning April 4, the limits [for capacity] will rise to 75%?”

“It still would not be adequate,” Cooney answered. “We should not be required to self-certify to something we believe is unconstitutional.”

“I understand,” the judge answered.

She said she would take the matter under advisement.