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Law360 (March 30, 2021, 4:49 PM EDT) -- A Pennsylvania appellate court on Tuesday rejected a Pittsburgh-area restaurant's bid to reopen while it fights a state court's ruling that it must follow mask mandates and capacity limits to operate during the pandemic.
Commonwealth Court Judge Renee Cohn Jubelirer denied The Crack'd Egg's request for a stay of the lower court's order that it must close until it complies with state and county directives that employees and customers wear face coverings when they aren't eating or drinking, but the judge set an expedited schedule for the anti-mask restaurant's appeal.
The restaurant, also known as The Cracked Egg LLC, had asked the appellate court to halt the enforcement of Allegheny County Court of Common Pleas Judge John McVay's Feb. 3 order so the restaurant could reopen at full capacity, and owner Kimberly Waigand has said she would never require employees or customers to comply with the mask orders.
"No matter what, we will never participate in the propaganda to earn a buck," Waigand said in a Facebook video posted Tuesday after the Commonwealth Court's ruling. She said she and her family would continue to hold fundraisers and events at the restaurant on a personal basis to support their cause, legal bills and personal costs, but would no longer host them as "The Cracked Egg LLC."
Waigand and her attorneys have attacked the mandates as unconstitutional, and they have a federal case pending where they are trying to make that argument. But they were unable to win over Judge McVay during a three-day evidentiary hearing in late January that focused on doubting masks' effectiveness or the seriousness of the pandemic.
The Crack'd Egg had opened at full capacity without masks when the state had allowed bars and restaurants to reopen if they limited in-person dining to 25% or 50% capacity and required masks for employees and patrons not at their tables. The Allegheny County Health Department had cited the restaurant and even suspended its operating permit, but the diner remained in operation until Judge McVay's February ruling.
The Cracked Egg LLC filed for Chapter 11 bankruptcy in October to trigger an automatic stay on the county lawsuit seeking to shut the restaurant down, and it tried to get the bankruptcy court judge to weigh in on the constitutionality of the orders the county sought to enforce. But the judge said the stay didn't apply to enforcement actions and that it should be up to the state or federal courts to weigh whether the mask mandates were legal. The company withdrew its bankruptcy petition after the lawsuit went forward.
In his February ruling, Judge McVay said the mask orders were constitutional, given the state's authority to pass emergency measures to protect public health, and he granted the health department's request for an injunction to shut down the restaurant until it submitted a plan to comply with the pandemic mitigation measures.
He then denied The Crack'd Egg's first request for a stay of his order, arguing the harm of letting businesses ignore mitigation measures — and potentially spread the virus — outweighed the harm of the restaurant staying closed while it refused to work with the health department on a plan to reopen with masks.
Judge Jubelirer set an expedited schedule for the restaurant's appeal, putting it on track for argument before the Commonwealth Court during its session currently set for June 7-11. The Crack'd Egg will have until April 30 to file its briefs, Allegheny County will get until May 14 to respond, and any replies must be filed by May 21.
"While we are disappointed in the ruling, we are pleased that the appeal schedule has been expedited by the court and are now on a path to have our arguments heard," said Sy O. Lampl of Robert O. Lampl Law Office, representing the restaurant.
Representatives for Allegheny County declined to comment Tuesday.
The Allegheny County Health Department is represented in-house by Vijyalakshmi Patel, Michael Parker and Jeffrey Bailey.
The Cracked Egg LLC is represented by James R. Cooney, Robert O. Lampl, Sy O. Lampl, Alexander L. Holmquist and Ryan J. Cooney of Robert O. Lampl Law Office, and Dennis M. Blackwell of The Blackwell Law Firm.
The case is County of Allegheny v. The Cracked Egg LLC, case number 101 CD 2021, in the Commonwealth Court of Pennsylvania.
--Editing by Aaron Pelc.
For a reprint of this article, please contact reprints@law360.com.
