Maybe Common Pleas Judge Michael A. Della Vecchia was feeling a little holiday malaise. Maybe he's got no guts.

But when he ruled that smokers could light up in Allegheny County bars and restaurants for an additional 120 days, he certainly showed nothing that's expected of a judge, which is judgment.

He let the rest of the ban, which covers smoking at other indoor workplaces, including sports venues and concert halls, take effect Jan. 2.

The court challenge -- being waged by two Downtown eateries, Mitchell's Bar & Restaurant and the Smithfield Cafe -- is about restaurants and taverns that don't want to comply with the county's smoke-free workplace ordinance. With big bucks from smoking promoter R.J. Reynolds Co., the owners of the two restaurants filed suit contending the ordinance would irreparably harm them.

Yet neither could say what loss they'd suffer. One of the standards for granting an injunction -- which is what Judge Della Vecchia gave bars and restaurants, a 120-day suspension of the ordinance -- is that the person claiming injury prove that the harm is immediate and irreparable and cannot be compensated by monetary damages. If the restaurant owners can't even guess how much money they'd lose, they've hardly proved clear and irreparable harm -- let alone that the damage couldn't be compensated.

The judge's opinion said he wanted to give the Legislature 120 days to resolve the question central to the lawsuit, which is whether the county had legal authority to enact the smoke-free workplace law. That's nice, but the Legislature has failed to act on this issue for years, making it highly unlikely that another 120 days will be sufficient.

In addition, the question was put to Judge Della Vecchia, not the General Assembly. The restaurants asked him to decide that the county had no right to impose the restrictions. The county responded by asking him to rule that it did.

Instead of studying the law and deciding, the judge said the decision should be made by the legislative branch, not the judicial. Maybe so, but by not deciding, Judge Della Vecchia has legislated from the bench. He has essentially rewritten the county law so that bars and restaurants are exempt for 120 days.

In his calculation, the potential loss of some money by restaurateurs is more meaningful than the damage to the health of workers and nonsmoking customers of those establishments over 120 days.

By failing to adjudicate the key issue before him -- whether the county had the power to regulate indoor smoking in workplaces -- Mr. Della Vecchia shirked his duty to judge.