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The three youngest children of an ice cream man shot dead in July 2001 while working in Wilmington, Pa., are eligible for dependency benefits, a Philadelphia workers’ compensation judge has ruled. In so holding, Workers’ Compensation Judge Aida L. Harris rejected the argument that Yemeni immigrant and Northeast Philadelphia resident Abdullah Alameri was an independent contractor — as opposed to an employee — of the company known as Jack & Jill Ice Cream. In Alameri v. Simco Sales Service of Pennsylvania Inc., Harris declined to order that benefits be paid to Alameri’s oldest children, who were 23 and 21 at the time of his death. The other three were teenagers at the time. The Alameris’ lawyer, Gerard Schrom of Schrom & Shaffer in Media, said the family patriarch, who was driving a Jack & Jill truck for the eighth summer in a row at the time, died following a botched robbery attempt while working a route assigned to him by Simco management. According to Harris’ opinion, Simco’s influence over Alameri’s work affected everything from where he sold ice cream to what he wore while doing so. “Simco, trading as Jack & Jill, exerted exquisite control over the manner in which Alameri and other vendors conducted their sales of product,” Harris wrote, adding later, “The facts set forth [in this opinion] establish that defendant, Simco, did possess the requisite degree of control over Alameri to establish an employee relationship. Alameri was in the course and scope of his business as a vendor for the defendant on July 18, 2001, when he was shot and killed.” Alameri and the other vendors were required to submit deposits to Simco in case of damage to the trucks and to pay daily rental fees to the company, according to the opinion. They were prohibited from selling “foreign product” as well as from displaying anything other than the Jack & Jill logo on the trucks they used. Product prices were determined by Simco. In addition, Harris found, Simco vendors were assigned specific routes and were not allowed to sell ice cream outside of those designated areas. Simco management settled territory disputes that arose between vendors. The company kept track of purchases made from vendors, and chastised those who did not work 12 to 14 hours a day and work seven days a week during the traditional mid-March to October vending season, according to the opinion. Those who did not work enough were denied the right to work at special events. Harris heard testimony from three Jack & Jill drivers/vendors, as well as from the manager of Simco’s Philadelphia facility. Harris noted that the Simco manager’s testimony that the company did not strictly enforce its assignation of vendors’ routes conflicted with other witnesses’ testimonies. “Alameri and the other vendors were regularly under the surveillance of Simco managers,” Harris wrote. “Skilled or veteran vendors were not independent of the supervision or control exercised by defendant’s managers. Defendant conducted unannounced spot checks of the ice cream trucks of veteran and new drivers alike to ensure compliance with Simco rules.” Harris ordered Simco to pay the three youngest Alameri children benefits pursuant to the Workers’ Compensation Act and based upon Alameri’s average weekly wages of $1,500. She further ordered that 20 percent of the award be paid directly to Schrom. Schrom said he believes Harris’ order, if upheld, should result in a lump-sum payment of roughly $75,000 to the three Alameris. Schrom likened Jack & Jill vendors’ work scenario to that of seasonal laborers. “The concern that any employer needs to be focused on is whether he is controlling a job to such a degree that the person is an employee, rather than an independent contractor,” he said. Simco’s attorney, Mark Gallagher of Weber Gallagher Simpson Stapleton Fires & Newby in Philadelphia, did not immediately respond to a call seeking comment.

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