Crack'd Egg loses appeal of closure order, plans to continue court fight

A Pennsylvania appellate court ruled in favor of the Allegheny County Health Department on Friday, finding that the forced closure of the Crack’d Egg restaurant in Brentwood was appropriate given its owner’s refusal to follow covid-19 mitigation measures.

The decision has no practical effect because Gov. Tom Wolf lifted safety protocols, including the mask mandate, at the end of June.

The restaurant, which debuted in 2015 along Brownsville Road, reopened on July 3.

Attorney Jim Cooney, who represents the Crack’d Egg, said there are still possible implications from the opinion — including whether the restaurant faces sanctions for operating while it was ordered to be closed. In addition, he noted that covid-19 is still circulating.

“It’s making its rounds again with an even more powerful variant, so who knows if they’re going to shut this down again,” Cooney said. “We’re grateful the court considered our arguments, but we think they’re wrong.”

His client plans to ask for a rehearing before an en banc, or nine-judge, panel of the Commonwealth Court.

The lengthy court battle for the Crack’d Egg began in August when the county health department ordered it to close after multiple complaints that its owner, Kimberly Waigand, was not following covid-19 mitigation measures, including masking and social distancing.

Despite the orders, the restaurant continued to operate until Allegheny County Common Pleas Judge John McVay granted a request for a preliminary injunction by the county in February following a three-day hearing.

McVay heard testimony from the county health department director and others who said that masks substantially decrease the risk of infection.

Waigand testified during the hearing that she would never require masks at her restaurant, calling them — and the emergency measures through which the Wolf administration implemented them — unconstitutional.

McVay was not swayed.

“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 in his decision.

Waigand appealed to the state Commonwealth Court, which heard arguments in June.

In its 34-page opinion, the Commonwealth Court found that the restaurant was unable to prove that the lower court’s opinion on the motion for preliminary injunction was in error.

“Therefore, we will not interfere with the decision of the trial court,” wrote Judge Renee Cohn Jubelier.

She wrote that in an appeal of an injunction, the court is not to consider the merits of the case, but whether there were “‘apparently reasonable grounds for the action of the court below.’”

The three-judge panel found that there were.

The court ruled that the restaurant improperly attempted to use case law from other states, including Wisconsin, to support its argument that Pennsylvania’s governor failed to follow the proper procedure in invoking the state’s police powers under an emergency.

Because the other states’ laws applied to their own statewide rules, there is no precedent for them in Pennsylvania.

Further, the court found that Pennsylvania’s Supreme Court has already upheld the implementation of the emergency code as a valid exercise of police power.