PITTSBURGH – Allegheny County’s Health Department is looking to dismiss a complaint filed by a Pittsburgh restaurant which sued it for its allegedly unconstitutional enforcement of COVID-19 emergency orders and further stop it from being sent to bankruptcy court.
The Cracked Egg, LLC of Pittsburgh first filed suit in the U.S. District Court for the Western District of Pennsylvania on Sept. 23 versus Allegheny County and the Allegheny County Health Department, of Pittsburgh.
The Cracked Egg is a family restaurant in the Brentwood section of Pittsburgh, which argues it was negatively affected by Gov. Tom Wolf’s disaster emergency declarations and other orders associated with the coronavirus pandemic in March.
Later, Secretary of Health Dr. Rachel Levine issued an order requiring universal face coverings on July 1 and Wolf issued an order implementing targeted mitigation measures, such as 25 percent occupancy for indoor dining and a maximum of 25 persons allowed on the premises including staff – though the plaintiff argues such measures were not deemed mandatory under the law.
As a result, when the Allegheny County Health Department conducted an inspection of The Cracked Egg on Aug. 11, the ACHD issued a report ordering that the restaurant be closed for “failure to comply with mask or facial covering guidelines.”
On Sept. 16, the ACHD filed a civil complaint against The Cracked Egg along with an emergency motion for preliminary injunction. However, the restaurant said the complaint was improperly served over e-mail and without specific information identifying it as such.
“The Cracked Egg believes and therefore avers that the failure to effectuate proper service was calculated to allow the ACHD to obtain its requested relief in an ex parte manner without any opposition,” the suit said.
As a result, the restaurant filed the instant federal lawsuit.
“On Oct. 9, plaintiff filed a voluntary petition for bankruptcy relief in the United States Bankruptcy Court for the Western District of Pennsylvania, which is currently pending before the Honorable Jeffery A. Deller. On Oct. 15, plaintiff filed a notice of removal for state court case, which notice removed jurisdiction of the state court case to the bankruptcy court,” the referral motion stated.
“This case involves various allegations that will directly affect the administration of the bankruptcy case and is directly related to the adversary proceeding. This case involves, amongst other things, violations of plaintiff’s constitutional rights, which violations are still ongoing, and continue to damage plaintiff’s business operation, which is an asset of the bankruptcy estate in the bankruptcy case.”
The plaintiff asserts the outcome of the instant case will determine its ability to continue operating its business, and therefore, the outcome of its Chapter 11 bankruptcy reorganization.
UPDATE
The Allegheny County Health Department filed a motion to dismiss on Dec. 11, mostly citing the abstention doctrine established in Younger v. Harris.
“Counts one through three of plaintiff’s complaint amount to nothing more than strained state law challenges to the State’s COVID-19 regulations. Plaintiff has failed to plead a viable cause of action against defendants. Furthermore, Eleventh Amendment immunity would apply to counts one through three, as plaintiff as not asserted any violation of a federal constitutional claim,” the dismissal motion read, in part.
As for the violative claims of procedural and substantive due process and equal protection, the department said the plaintiff has pled no facts to supports its contentions there.
Likewise, the department felt that the suit doesn’t need to be heard in a bankruptcy court.
“It is plaintiff’s burden to show that this present action challenging the State’s COVID-19 mitigation measures regarding face coverings and occupancy limits are related to bankruptcy,” the accompanying response to the bankruptcy remand motion said.
“These statements are vague and conclusory. Moreover, what plaintiff is asking for in this matter is for this Court to invalidate the State’s COVID-19 mitigation orders. This would have an impact on the entire Commonwealth of Pennsylvania. By this logic, every case filed in Pennsylvania challenging the State’s COVID-19 mitigation orders would be related to plaintiff’s bankruptcy proceeding. Plaintiff has not sufficiently shown how this matter relates to the bankruptcy proceeding.”
For counts of unenforceable orders, improper extension of emergency powers, violation of the separation of powers doctrine, deprivation of procedural and substantive due process, deprivation of equal protection under the law, the plaintiff is seeking:
• A declaratory judgment finding that the ‘emergency orders are unconstitutional, and that the defendants have violated the plaintiff’s civil rights by attempting to enforce such orders;
• An injunction to prevent further violations;
• Damages, attorneys’ fees pursuant to 42 U.S.C 1988; and any other relief that is just and appropriate.
The plaintiff 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, in Pittsburgh.
The defendant is represented by Frances M. Liebenguth and Vijyalakshmi Patel of the Allegheny County Law and Health Departments, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01434
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com