No. 994 PITTSBURGH, 1981, Appeal from the Judgment entered in the Court of Common Pleas, Civil Division, of Beaver County, No. 1433 of 1980.
Joseph M. Stanichak, Aliquippa, for appellant.
Lee E. Whitmire, Jr., Beaver Falls, for appellee.
Hester, Johnson and Popovich, JJ.
[ 308 Pa. Super. Page 353]
This action in equity was instituted by appellant to enjoin appellee from employing chemical herbicides on property adjacent to appellant's land.*fn1 At trial, appellee's motion for
[ 308 Pa. Super. Page 354]
a compulsory non-suit was granted.*fn2 Appellee thereafter pursued its counterclaim and was eventually awarded a verdict thereon in the amount of $2,625.00. Appellant filed exceptions to the verdict, which were argued and denied. This appeal ensued.
Appellant contends that the counterclaim did not arise from the same occurrence upon which appellant based his complaint. A legal counterclaim which attaches to an equitable action is only proper when it arises from the same transaction or occurrence. Pa.R.C.P. 1510 provides:
"(a) A defendant may plead as a counterclaim only a cause of action, whether equitable or legal, which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's cause of action arose . . . ."
In the instant case, appellant initiated an action in equity to obtain a permanent injunction prohibiting appellee from using chemical herbicides to clear brush and tree growth from its right of way through appellant's land. Appellant averred in his complaint that plant and animal life on his land was being destroyed by the use of such herbicides.
In its answer, appellee denied that the herbicides were either harmful or dangerous and also denied that the chemical compound was applied to appellant's land. In addition, appellee filed a counterclaim for attorney's fees, alleging that this suit constituted vexatious litigation.*fn3 Costs and counsel fees which ...