Judge orders evidentiary hearing in Crack'd Egg fight against Allegheny County

An Allegheny County judge on Friday ordered an evidentiary hearing in the county health department’s request for an immediate injunction against a Brentwood restaurant continuing to operate despite closure orders issued more than five months ago.

Attorneys for the Allegheny County Health Department asked Judge John McVay to enforce an Aug. 11 closure order against the Crack’d Egg – an order issued for the restaurant’s repeated flouting of covid-19 mitigation measures in place since early last year.

Owner Kimberly Waigand has refused to comply, saying previously she will “fight back the tyranny.”

County attorney Vijya Patel told the judge that not granting the injunction that would enforce the closure order would “result in greater harm than granting it due to the virus being airborne and highly infectious,” particularly because the restaurant is “an indoor dining venue and therefore high risk.”

Patel noted that the restaurant had, prior to the closure order, failed to follow state-mandated mitigation measures, including operating at a lesser capacity, requiring masking of employees and patrons and failing to allow for social distancing. It had continued to go against the measures since the Aug. 11 order, operating at full capacity.

Attorney James Cooney, who represents the restaurant, argued that Gov. Tom Wolf’s orders regarding mitigation measures hold no merit and are not enforceable, thus making the health department’s case moot.

“The closure order … is based solely upon the alleged failure to comply with covid mitigation measures,” he said. “There are no valid or enforceable laws to enforce these covid mitigation measures.”

Cooney called Wolf’s orders “nothing more than a proclamation,” and enforcing them “would violate the Constitutional rights of the Crack’d Egg.”

He said that, given the opportunity, he would present evidence that the orders hold no water.

Patel noted that the health department was acting not only under the state covid-19 orders but also its own power, as it is required to regulate for the purpose of public health.

McVay said an evidentiary hearing is necessary in the case.

“I want an evidentiary hearing and, frankly, I think Crack’d Egg is certainly entitled to it,” he said.

The hearing will begin Wednesday.

Friday’s hearing on the health department’s motion for an injunction came days after U.S. Bankruptcy Judge Jeffery A. Deller ruled the health department could continue proceedings against the restaurant. Those proceedings were automatically stayed, or put on pause, in October when restaurant owner Kimberly Waigand filed for Chapter 11 bankruptcy protection.

Health department attorneys argued that their case should not be halted by the bankruptcy case since it involves a law enforcement action. On Jan. 7, Deller issued an opinion agreeing with that position. He denied a motion to stay that decision on Tuesday.