Judge: Crack'd Egg can't flout covid rules while waiting to appeal ruling

The embattled Crack’d Egg restaurant in Brentwood cannot allow maskless customers or operate at 100% capacity while its attorneys appeal those mandates, a Commonwealth Court judge has ruled.

Attorneys for the restaurant on Brownsville Road, requested the stay, or pause, on a ruling issued in February by the Allegheny County Court of Common Pleas.

In that February ruling, Judge John McVay ordered restaurant owner Kimberly Waigand to either follow Pennsylvania’s state-issued covid-19 mitigation measures or close. The restaurant has remained closed since then.

Attorney James Cooney appealed that lower court’s ruling and on Monday asked Commonwealth Court Judge Renee Cohn Jubilerer to allow Waigand to operate at full capacity and without a mask mandate until the appeal is settled.

Cooney said Waigand will likely win the appeal and remaining closed in the meantime will cause irreparable harm. He argued the state’s mitigation measures – masks, social distancing and gathering and capacity limits – were not properly passed in the rule-making process of the state legislature.

Cohn Jubilerer disagreed, denying the stay in a ruling issued Tuesday.

In Monday’s arguments, Cohn Jubilerer asked Cooney if Waigand had made any attempt to self-certify.

“No, your honor,” he said. “Because my client doesn’t believe the order to wear face masks is constitutional.”

Capacity limits on restaurants are set to increase on Sunday, with restaurants permitted to move from 25% capacity to 50% capacity. Owners and managers who complete an online self-certification process will be able to operate at 75% capacity.

Cooney said even 75% capacity would not be enough for Waigand to sustain her business. The only way to do so, he said, would be to operate at full capacity.

“We should not be required to self-certify to something we believe is unconstitutional,” he said.

Arguments in the appeal are set for June.