Judge rules against Crack'd Egg restaurant: 'They've largely chosen their fate here'

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An Allegheny County judge said that the owners of the Crack’d Egg have “largely chosen their fate,” by remaining closed rather than comply with a covid-19 masking order.

Common Pleas Judge John McVay on Wednesday denied the Brentwood restaurant’s request to stay an order he issued earlier this month requiring it to close or follow covid-19 masking measures pending an appeal.

Following argument from attorneys for Allegheny County and the restaurant, McVay ruled from the bench.

“I don’t see a constitutional problem with a mask mandate,” he said. “It’s a simple, relatively inexpensive protective measure.”

The Crack’d Egg was ordered closed by the Allegheny County Health Department in August for refusing to comply with the governor’s covid-19 mitigation orders that required masking and social distancing — or reduced capacity for customers.

Owner Kimberly Waigand defied the health department and continued to operate. Following a three-day hearing in January during which Waigand said she would “never” enforce a mask order, McVay granted an injunction request by the county. The restaurant was ordered to cease operations or submit a covid-19 mitigation plan to the county.

That night, Waigand said in a Facebook video that she would close.

Her attorneys filed a motion seeking a stay of McVay’s order pending the outcome of an appeal in Commonwealth Court.

On Wednesday, county attorney Vijya Patel argued that if the court granted the stay, it is possible that other restaurants that have been following the rules would be less likely to do so.

“Every day the Crack’d Egg operates in violation of the mitigation orders is a day it places the public at risk,” she said.

James Cooney, who represents the restaurant, argued that he believed his client had a “colorable chance of success on appeal.” Under the law, one of the required prongs to grant a stay is a “strong likelihood of success.”

However, in reaching his decision, McVay said he does not think there is a strong likelihood the Crack’d Egg will prevail.

The judge said there is no legal precedent on masking but that they are a small inconvenience to try to prevent the spread of a deadly virus during a pandemic.

Cooney argued that if the Crack’d Egg is forced to operate at 25% capacity, it will go out of business.

While McVay was sympathetic to the economic losses caused by the pandemic, they did not sway him.

“Crack’d Egg has chosen to remain closed. They take their position on the constitutionality of the mask and appeal, that’s their right,” McVay said. “But they choose to be closed rather than meet with the health department and have customers wear masks while they appeal.

“They’ve largely chosen their fate here.”