Judge reinforces ruling that legal proceedings can continue against Crack'd Egg

The Crack’d Egg restaurant on Tuesday lost another round of a legal battle in federal bankruptcy court.

A decision by U.S. Bankruptcy Judge Jeffery A. Deller allows the Allegheny County Health Department to continue proceedings against the Brentwood restaurant. It has repeatedly defied state-mandated mitigation orders requiring the wearing of masks and social distancing during the covid-19 pandemic.

“I think we all agree having everyone follow the law is in our public interest,” Deller said.

The health department in August ordered the restaurant on Brownsville Road to close for failing to follow the governor’s mitigation orders. However, owner Kimberly Waigand refused to comply and has been operating at full capacity ever since, having said she will “fight back the tyranny.” In September, the county filed a lawsuit against the restaurant in Common Pleas Court. But that action was stayed a month later when Waigand filed for Chapter 11 bankruptcy protection.

Health department attorneys argued that their case should not be halted by the bankruptcy case since it involves a law enforcement action. On Jan. 7, Deller issued an opinion agreeing with that position.

The case is scheduled for a hearing on a motion for preliminary injunction before Common Pleas Judge John McVay on Friday.

However, the Crack’d Egg’s attorneys filed a motion to stay Deller’s decision pending an appeal. In their motion, they argued that they believed they had a strong likelihood of success on the merits of their appeal; that the restaurant would be irreparably harmed if the case was not stayed; that the county would not be harmed by the stay; and that a stay would promote public interest.

In arguing the harm the restaurant could sustain, attorneys wrote, “The ACHD has indicated that it intends to shut the Crack’d Egg down.”

But during a hearing Tuesday morning, county attorney Vijya Patel said that is not the case.

“The department is not attempting to shut down Crack’d Egg but merely to ensure it is operating within the parameters of the state mitigation orders,” she said.

While following the requirements may not be the owner’s preferred way of operating, Patel continued, it does not require it to close.

The restaurant could operate at 50% capacity, follow masking requirements and self-certify, she said.

Patel argued that there is harm by allowing the restaurant to continue to operate outside of the state mandates because of the ease with which covid-19 can spread — particularly when masks and social distancing are not observed.

Attorney James Cooney, who represents the restaurant in the bankruptcy case, has said he believes the mitigation orders are not legitimate and therefore cannot be legally enforced. On Tuesday, he told the court that he believes Deller should rule on that issue.

But the judge said it is not within his jurisdiction to decide the constitutionality of the mitigation orders. Instead, Deller said, that decision must be made by either Common Pleas or federal District Court.

In making his decision on the motion to stay, Deller said he does not believe the Crack’d Egg showed a likelihood of success on the merits, finding that they were “not significantly better than negligible.”

The judge also said he does not believe the restaurant will suffer irreparable harm because the case will continue in another venue.

“They will have their day in court,” Deller said. “I think what’s in the public interest is that these issues be decided.”