Judge orders Crack'd Egg to follow covid rules or close

An Allegheny County judge ruled Wednesday that a Brentwood restaurant must adhere to state and county covid-19 restrictions or close immediately.

An attorney for the Crack’d Egg said they will request a stay on the order while the decision is appealed to state Commonwealth Court. If no stay is granted, “we’re not going to violate the court’s orders,” said attorney Sy Lampl.

Common Pleas Judge John McVay granted an injunction request by Allegheny County Health Department, finding that it is necessary to “prevent immediate and irreparable harm that cannot be adequately compensated by damages.”

Greater harm would occur by not granting the county’s request, he said.

In his opinion, McVay said that orders requiring masking and social distancing are constitutional as they 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,” he wrote.

McVay said he found the testimony of owner Kimberly Waigand to be credible and empathized with the losses her restaurant has suffered during the pandemic.

If she presents an acceptable plan to the health department for following mitigation measures, McVay wrote, the Crack’d Egg can stay open.

“I ask her to reconsider and work with the health department to come up with a covid-19 mitigation plan,” the judge wrote.

The health department issued a closure order for the Crack’d Egg in August, but Waigand thumbed her nose at it.

Instead, she argued that the governor had no authority to issue mitigation orders to slow the spread of covid-19.

On the recorded message line for the restaurant on Wednesday, Waigand says, “Here at the Crack’d Egg, we follow no edicts of the tyrannical government. We walk as free people, and masks are not required. You will love the side of freedom that’s served with every meal.”

A message left with the restaurant was not returned.

Lampl said they were disappointed in the judge’s opinion.

In a Facebook Live video posted Wednesday evening, Waigand said that the restaurant would close temporarily but will continue to fight.

“Since the injunction is based on law, we at the Crack’d Egg are obligated to give the judicial system its due. This does not mean we’re giving up,” she said.

Waigand told the viewers “At first I was mad, then I cried about it. Then I got mad again.”

She called the decision “completely against the Constitution,” and said she expects a different outcome on appeal.

“That’s why we have to go to a higher court and get out of Allegheny County.”

She said repeatedly that McVay’s ruling was not unexpected “as he is a judge in Allegheny County.”

In response to a comment from a viewer, she said, “I wonder if the judge is voted in? I don’t know.”

Common Pleas Court judges are elected to 10-year terms.

Last week, McVay held a three-day hearing on the health department’s request for an injunction to force the restaurant to comply or close.

During that hearing, Waigand testified that she would “never” require people in her Brownsville Road establishment to wear masks, saying she believes it is a violation of their freedom.

As part of the Crack’d Egg’s case, they called two expert witnesses — one who said that there is no proof that masks effectively halt the virus, although they “may.”

The other testified that he believes the current testing regiment for covid-19 produces a large number of false positives, and that closing down society over it will cause long-term harm.

In his opinion, Judge McVay wrote that he recognizes the constitutional right of a person to earn a living.

“The covid-19 pandemic threatens the health and safety of every citizen and person in the commonwealth while overburdening our healthcare systems and destroying the businesses and livelihoods of many Americans,” he wrote. “Particularly hard hit are restaurants, bars and other entertainment and leisure industries requiring the congregation of large numbers of people in confined indoor spaces.”

But, he continued, he found the decision in the Pennsylvania Supreme Court case involving Friends of Danny DeVito in April to be precedential. In that case, the court held that “the governor has primary responsibility for protecting the public safety and welfare of the people of Pennsylvania in times of actual or imminent disasters where public safety and welfare are threatened.”

McVay said that the restaurant’s argument that legislation was required to authorize the mitigation orders was “flawed.”

Instead, the governor’s disaster emergency proclamation, McVay wrote, supersedes any procedural regulatory statute.

Requiring the state or health department to follow “time-consuming rule-making procedures” during a pandemic, he continued, “would result in greater harm to the general public.”

McVay added that both the county and state departments of health have independent authority under public health laws to issue their own administrative orders to deal with the control and spread of all communicable diseases.

“Clearly, I recognized throughout the case that we are dealing with covid-19, a disease unknown to the world a little over a year ago, and we are studying it and learning about it as we go and as reflected in changing recommendations by the WHO and CDC,” McVay wrote.

He said in the opinion that neither covid outbreaks at the Crack’d Egg nor 100% mask efficacy are required to prove immediate or irreparable harm to public health.

McVay wrote that he found Waigand’s testimony regarding the impact of the pandemic on her business credible — she said the restaurant’s income dropped from $50,000 monthly to less than $14,000 — and that “hopefully our legislative leaders will do more to help small businesses that clearly are suffering.”

The judge continued, “As I have found Ms. Waigand to be credible, I likewise believed her when she said that she would never require masks and therefore to return to the closure order in light of her subsequent reopening at full capacity with masking will properly restore the status quo.”