The owner of Brentwood’s Crack’d Egg restaurant has filed a motion for a stay pending an appeal to Commonwealth Court.

The motion filed Friday said that a decision by Allegheny County Common Pleas Judge John McVay last week is contrary to a federal court ruling in September that found Gov. Tom Wolf’s covid-19 shutdown orders unconstitutional.

Following a three-day hearing, McVay ordered the Brownsville Road restaurant on Wednesday to comply with state-mandated masking and social distancing requirements or close.

Owner Kimberly Waigand chose to close instead of complying with the mask mandate.

She testified during the hearing that she would never enforce a mask order.

The county Health Department ordered Crack’d Egg to close in August for failing to follow masking requirements. Waigand refused to shut down, calling the governor’s orders “edicts” and “tyrannical,” and the restaurant continued to operate without requiring people to wear masks or practice social distancing.

The health department sought an injunction to force the restaurant to comply or close, which McVay granted.

He found the mitigation orders are “rationally related to the legitimate government interest of protecting the citizens of Allegheny County from the spread of covid-19.

“If I did not grant the injunction, restaurants that are following the rules will become less likely to do so and thus further increasing public health risks to everyone involved and possibly increasing overall community spread,” McVay wrote.

County health department officials testified during the hearing that 11 covid outbreaks have been traced to restaurants, but no cases have traced to the Crack’d Egg.

In the motion to stay, the restaurant’s attorneys said that scientific opinion is divided over the efficacy of face masks in preventing the spread of covid-19 and that enforcing the governor-ordered mitigation measures would violate Crack’d Egg’s substantive due process and equal protection rights.

To win a stay, the restaurant must show it is likely to prevail on the case’s merits, that without a stay it will suffer irreparable injury, that a stay won’t harm other interested parties and that a stay will not adversely affect the public interest.

“Without a stay, the Crack’d Egg will be irreparably harmed,” attorneys wrote.

Waigand testified that if the business is limited to 25% capacity, it would be forced to go out of business.

In the federal court case the restaurant referenced, U.S. District Judge William Stickman IV found that the governor’s orders restricting the size of gatherings and closing nonessential businesses were unconstitutional.

He found they violated the First Amendment right to freedom of assembly and the Due Process and Equal Protection clauses of the 14th Amendment.

The governor has appealed to the 3rd U.S. Circuit Court of Appeals, which granted a stay of Stickman’s order while the case is pending.

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