By Matthew Santoni

Law360 (February 17, 2021, 3:39 PM EST ) A Pennsylvania judge declined Wednesday to stay an order closing a Pittsburgh-area restaurant that had refused to follow state mask mandates and occupancy limits, saying he didn't think the diner was likely to succeed with an appeal arguing that the pandemic mitigation orders were unconstitutional.

Judge John T. McVay Jr. of the Allegheny County Court of Common Pleas reiterated his earlier opinion that state orders requiring masks passed constitutional muster under both the 115-year-old U.S. Supreme Court precedent of Jacobson v. Massachusetts and the rational-basis tests that followed Jacobson, since the state and the county Health Department had rational, public-health-based reasons for requiring face coverings to reduce the spread of COVID-19.

The Crack'd Egg restaurant hadn't shown that it would be immediately harmed by failure to grant a stay because it had chosen to shut down rather than comply with the rules, he said.

"They've largely chosen their fate," Judge McVay said. "It is a simple, relatively inexpensive protective measure …  I don't think the Constitution has any problem with that."

Judge McVay ruled from the bench after video arguments Wednesday, clearing the way for the Cracked Egg LLC, the Brentwood restaurant's parent company, to take its appeal to the Commonwealth Court of Pennsylvania.

The Crack'd Egg had not followed the state's orders that employees and customers not eating wear masks, and had operated above the 25% capacity limit intended to allow for safe social distancing, with owner Kimberly Waigand portraying those practices as an act against government "tyranny."

The Allegheny County Health Department had issued several citations for failure to follow the pandemic mitigation orders and eventually suspended the restaurant's operating permit, but it stayed open anyway.

The county sued the restaurant in September. The Cracked Egg LLC filed for Chapter 11 bankruptcy in October so it could halt the litigation and stay open, but the bankruptcy court lifted the stay on the county's case on Jan. 7.

On Feb. 3, Judge McVay ruled that the restaurant had to shut down until it complied with state and county health orders. The Cracked Egg quickly announced its intention to appeal, and although Waigand had said she would shut down rather than comply, the restaurant asked McVay for a stay pending the appeal.

Attorney James Cooney, representing the restaurant, argued that he did not need to show a "strong" likelihood that an appeal would succeed, only that the claim was plausible. Cooney pointed to a footnote in Pa. PUC v. Process Gas that said the "likelihood of success" prong of weighing a stay should be flexible since it was unlikely that most courts would change their mind on their own rulings.

Cooney said there were still issues of whether the "temporary" emergency declarations cited as reasons the state could skip its usual lengthy rulemaking process could still be considered temporary nearly a year later.

The primary state case Judge McVay cited in upholding the mask orders, Friends of Danny DeVito v. Gov. Tom Wolf , had come only a month or two into the pandemic, while the restaurant's preferred precedent, County of Butler v. Wolf , had led to a federal court ruling that the temporary measures had gone on long enough back in September, he said.

Vijyalakshmi Patel, representing the health department, said the stay should be denied because the Cracked Egg had not shown that it was likely to win on appeal and because the potential spread of the virus outweighed the economic harm of keeping the restaurant closed. It could still reopen under the judge's orders, she said.

The Crack'd Egg "may want to open at 100% capacity, like every other restaurant in the Commonwealth would, but they have not been deprived of the ability to do business," Patel said.

Representatives of the health department did not immediately respond to requests for comment after the hearing Wednesday.

"The lower court ruling casts a dilemma for our clients in that accepting compliance would be a convenient, at least interim, salvation for their business but at the sacrifice of their principles and constitutional rights. Our clients have opted to stand on their rights," said Sy Lampl, another of the attorneys representing the Crack'd Egg. "To the extent we prevail on appeal, the county will have a reckoning in our civil rights action given its pervasive policy of mandating what we view as unconstitutional conditions put on otherwise lawfully operated businesses."

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 GD-20-009809, in the Court of Common Pleas of Allegheny County, Pennsylvania.

--Editing by Karin Roberts.

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