concurring.
I concur with the majority’s reversal of the trial court’s order awarding counsel fees, but do not join because I disagree with the reasoning used in arriving at its holding. The majority reverses the trial court’s award of counsel fees for two reasons: Taxpayers have failed to exhaust their state administrative remedies and a Section 1983 action against the Commonwealth and its officials is barred by the Eleventh Amendment. I disagree that there is a requirement for exhaustion of administrative remedies, as well as Taxpayers’ action is totally barred by the Eleventh Amendment. I would, however, reverse the award of counsel fees because I do not believe Taxpayers have prevailed on any significant issue.
On May 16, 1988, Taxpayers brought a class action civil rights action pursuant to 42 U.S.C. § 1983 challenging a Pennsylvania Department of Revenue (Department) policy regarding sales tax on auto rebates received by a consumer when purchasing a new motor vehicle. They sought both an injunction of the Department’s tax rebate policy, as well as a refund of all sales tax calculated on the rebate amount. The action arose because sales tax was paid on the entire purchase price, apparently as a result of a 1987 letter ruling of a Department of Revenue Attorney, finding that the calculation of sales tax against an automobile’s purchase price should not be reduced by the amount of any manufacturer’s rebate.1 Responding to a request for clarification of the Department’s rebate policy from the Pennsylvania Automotive Association *625(PAA), in a letter dated April 28,1988, three weeks before this lawsuit was filed, a Deputy Secretary of the Department stated that the Department would allow the rebate amount to be subtracted from the purchase price.2
After its preliminary objections to the complaint were denied, the Commonwealth filed an answer and new matter contending, among other things, that the policy sought to be enjoined had already been changed. The Commonwealth filed for judgment on the pleadings that the trial court also denied. Taxpayers then filed for class certification of the action which was granted by the trial court. After certification, the parties agreed to class notice and the notification process by mailing the notices to almost 2 million individuals. Notice was accomplished by placing the notices in the PennDot renewal packet. Taxpayers then filed a petition for voluntary discontinuance and a petition for attorney’s fees and costs contending that because the class had been certified and notice given, and the Commonwealth had agreed to pay all class members’ claims if filed, they had obtained the full relief for the class and, consequently, were entitled to attorney’s fees under 42 U.S.C. § 1988.3 The trial court granted discontinuance of the class action, ordered the Commonwealth to pay all approximate class members’ refunds if filed, and to pay Taxpayers $771,-176.14 in attorney’s fees and costs. After the Commonwealth’s post trial motions were denied, this appeal followed.
I.
One of the bases on which the majority reverses the trial court is its holding that Taxpayers had to exhaust the administrative procedures provided for in the Tax Code before bring*626ing a Section 1983 action. Recognizing that the Supreme Court, in Murtagh v. County of Berks, 535 Pa. 50, 634 A.2d 179 (1993), did not require Taxpayers to exhaust their administrative remedies before filing a Section 1983 action, the majority finds that because Murtagh involved a claim of invidious discrimination, and here, no discrimination is alleged, that distinction takes this case out of Murtagh’s ambit. As such, Taxpayers are still required to exhaust their administrative remedies before maintaining a Section 1983 action. I disagree with the majority’s holding because Murtagh did not attempt to address the necessity of exhaustion of administrative remedies, but rather, the applicability of the Tax Injunction Act of 1937, 28 U.S.C. § 1341, to a Section 1983 action brought in state courts.
Murtagh involved a class of taxpayers challenging the real estate tax assessment procedures of the Berks County Board of Assessment through a Section 1983 action. At issue was the applicability of the Tax Injunction Act to Section 1983 actions brought in state courts. Because the jurisdiction of federal courts for federal statutory violations are set by Congress, Congress, in acts such as the Tax Injunction Act, can foreclose jurisdiction of district courts over certain causes of action. When enacting the Tax Injunction Act, Congress provided that:
The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under state law where a plain, speedy and efficient remedy may be had in the courts of such state. (Emphasis added).
While the Tax Injunction Act only bars injunctive action, the Supreme Court in Fair Assessment in Real Estate Association, Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981), found that the principle of comity bars actions for monetary damages as well.
The United States Supreme Court stated that when Congress enacted the Tax Injunction Act, it recognized that the autonomy and fiscal stability of states survive best when their tax systems are not subject to federal scrutiny. The Supreme *627Court reasoned that allowing actions for monetary damages would be just as intrusive and disruptive to the state’s revenue collection system as the actions for injunctive relief specifically barred under the Tax Injunction Act, and monetary damages should also not be available. The court then went on to state that “[s]uch taxpayers must seek protection of their federal rights by state remedies, provided, of course, that those remedies are plain, adequate and complete, and may ultimately seek review of the state decisions in this court.” Id. at 116, 102 S.Ct. at 186, 70 L.Ed.2d at 283. (Emphasis added).
Reversing this court and not disagreeing that state remedies to challenge unlawful assessments were adequate and complete, our Supreme Court held that the statutory abstention of the Tax Injunction Act did not foreclose state courts from hearing Section 1983 actions. It held that while Congress did not want federal courts to intrude in state tax procedures by entertaining challenges based on federal causes of action, that rationale did not apply by the Act’s very terms. The Tax Injunction Act only applied to federal district courts, and the principle of comity embodied in that Act and Supreme Court decisions expanding it did not apply when the state courts were doing the intruding. While Taxpayers in this action could not maintain this cause of action in federal court as a result of Murtagh, nothing forecloses them from maintaining their Section 1983 action in state courts. As can be seen from the foregoing issue, Murtagh has nothing to do with exhaustion of administrative remedies, but whether an action foreclosed in federal courts based on comity is also barred in state courts.
This leads to the crux of my disagreement with the majority: its holding that the plaintiffs need to exhaust administrative remedies prior to bringing this action. In Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990), the Supreme Court held that state courts are mandated to hear Section 1983 actions explaining that “federal law is enforceable in state courts ... because the Constitution and laws passed pursuant to it are as much laws in the states as laws passed by the state legislature.” Id., 496 U.S. at 367, 110 S.Ct. at 2438, *628110 L.Ed.2d at 347. It went on to say that because it is a federal right, “a state may not, by statute or common law, create a cause of action under Section 1983 ...” nor may a state lessen the availability of a Section 1983 action. Id., 496 U.S. at 368, 376, 110 S.Ct. at 2439, 2442, 110 L.Ed.2d at 348, 353. By holding that Taxpayers must exhaust their administrative remedies, I believe that the majority is diminishing the availability of a federal cause of action directly contrary to Howlett.
From the resurrection of Section 1983 in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court has rejected the requirement that before filing a Section 1983 cause of action, even state judicial remedies must be exhausted. In Monroe, it stated “[t]hat this court has not interpreted Section 1983 to require a litigant to pursue, state judicial remedies prior to commencing an action under this section.” Extending that holding, in Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), the Supreme Court has also found that a plaintiff need not exhaust his or her administrative remedies in order to maintain a Section 1983 cause of action because Congress intended that aggrieved parties have ready access to the forum of their choice. See also Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). Because the Supreme Court has expressly held that there is no need to exhaust state administrative remedies, I disagree with the majority that Taxpayers could not maintain their Section 1983 action because they failed to exhaust their administrative remedies.
II.
The other basis on which the majority relies to reverse the trial court’s decision is that a Section 1983 action against the Commonwealth and its officials acting in an official capacity is not maintainable because of the Supreme Court’s decision in Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Will greatly limited the viability of maintaining Section 1983 actions against states and *629its officials. Prior to Will, Section 1983 actions against states were dismissed under the Eleventh Amendment to the United States Constitution which generally prohibits suits against a state or its agencies. See, e.g., Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Because it does not immunize states from suits in state courts, Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), and a state could waive its immunity, Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990), the Eleventh Amendment acts only as a partial bar to the bringing of a Section 1983 action against them. Will affords states a much greater protection than that afforded by the Eleventh Amendment from a Section 1983 suit by holding that states are not “persons” as used in the section. Because they are not “persons”, they do not fall within the section’s ambit and cannot be sued in state courts nor can the state waive immunity. However, Will’s bar to maintaining a Section 1983 action against public officials when acting in their official capacity is not total.4
As the majority itself recognizes, while the state continues to be immune from suit, state officials still can be sued under Section 1983 in their official capacity for prospective injunctive relief. See Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2311 n. 10, 105 L.Ed.2d at 58 n. 10. “[0]f course, a state official sued in his or her official capacity for injunctive relief would be a person under Section 1983 because ‘official capacity actions for prospective relief are not treated as actions against the State’ ” Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
Because a Section 1983 action cannot be maintained to obtain any judgment that would require reimbursement of funds from the state treasury, I agree with the majority and find that portion Taxpayers’ action requiring the Common*630wealth to pay all appropriate refunds cannot be maintained. However, because the Section 1983 action can be maintained seeking prospective injunctive relief, I believe that portion of the action against state officials was maintainable. Because it was maintainable, we are required to determine whether Taxpayers are prevailing parties within the meaning of Section 1988.
III.
While the previous analysis of exhaustion of administrative remedies and the effect of Will on Taxpayers’ claim was necessary, that analysis is only relevant in the way it aids in determining whether Taxpayers are entitled to counsel fees. Specifically, the issue before us is whether Taxpayers are prevailing parties within the meaning of Section 1983, when Taxpayers’ voluntarily discontinued their action. In Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987), the Supreme Court held that a plaintiff to be entitled to counsel fees must show that the litigation was the direct cause of the changes made by the public officials. See also Farrar v. Hobby, — U.S. -, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). An award of some sort of injunctive or monetary relief is required and the mere obtaining of favorable judicial comments does not bring a plaintiff within the definition of prevailing party. Nonetheless, the court in Hewitt did not foreclose all claims despite the absence of a formal judgment when the suit provides the plaintiff with some or all of the relief sought. The touchstone of whether the party has prevailed is whether as a result of the plaintiffs lawsuit, there is a material alteration of the legal relationship of the parties which Congress sought to promote in the fee statute caused by the litigation. Texas State Teacher’s Association v. Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989).
The trial court, in its finding of fact, held that Taxpayers’ Section 1983 action materially altered the legal relationship between the parties for three basic reasons, it found the Commonwealth:
*631• in July, 1988, adopted Taxpayers’ position and agreed not to tax manufacturers rebates received prior to the sale; (Findings of Fact la, lb, 2a).
• agreed to pay cash refunds for those individuals who filed a claim for refunds from the state; (Findings of Fact 2c, 2e).
• the class was certified, and as a result of the required class notice, individuals received notice that they were entitled to refunds on sales tax paid on rebates. (Findings of Fact Id, 2b, 2d, 2e).
None of those findings justify the award either because they are not supported by substantial evidence or do not represent a material change in the legal relationship between the parties.
As to the change in the Department’s policy not to tax rebates, the policy that Taxpayers sought to change was changed, but it was changed on April 28, 1988, three weeks before Taxpayers filed their Section 1983 action. The uncontroverted testimony of the Department’s Deputy Secretary was that the policy announced was the result of ongoing discussions with the PAA and not the result of Taxpayers’ conduct. Moreover, just because the Commonwealth agreed when class notice was sent out that the Commonwealth would not tax rebates and that refunds were available, does nothing to change the legal relationship between the parties. It was a remedy that was already available to Taxpayers. A Section 1983 lawsuit that results in the plaintiff doing no more than it already had committed to do will never satisfy the requirement that the litigation caused the benefit. See Disabled in Action of Pennsylvania v. Pierce, 789 F.2d 1016, 1019 (3rd Cir.1986).
As to the trial court’s finding that Taxpayers’ Section 1983 action caused refunds to be issued, it is not factually supported in that the Department had previously agreed that its policy was not proper and had already begun to issue refunds. Even if the Department had not begun issuing refunds, Will precludes the maintaining of a Section 1983 action for compensa*632tory damages or awarding any type of retroactive relief, including the obtaining of tax refunds.
Finally, just because Taxpayers were successful in having the class certified and in sending class certification notices that there was an administrative process by which refunds would be made to those who paid taxes on rebates, that is not the type of success needed for a plaintiff to be awarded Section 1988 counsel fees. When the class notice was sent, the Commonwealth’s policy had already changed and refunds were already being issued. In Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), the Supreme Court made it clear that the plaintiff needs to prevail on the merits of his or her claim to be entitled to counsel fees. It held that success on “procedural or evidentiary rulings which may effect the disposition on the merits, but were themselves not matters on which a party could ‘prevail’ ” and be entitled to Section 1988 counsel fees. Id. at 759, 100 S.Ct. at 1990, 64 L.Ed.2d at 675. Under Hanrahan, counsel fees may not be awarded for class certification and notice because that is only a procedural victory, even though it may have the effect of informing the class that relief may be available. See Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1253, 1254 (2nd Cir.N.Y.1984); see also N.A.A.C.P. v. Wilmington Medical Center, Inc., 689 F.2d 1161, 1165-66 (3rd Cir.1982).
For the above reasons, I concur with the majority in reversing the trial 'court and denying Taxpayers’ claim for counsel fees under Section 1988.
. This letter finding was that a manufacturer’s rebate was not available to a purchaser until the sale is actually consummated. Because it was not available until after the sale, the amount could not be used to reduce the purchase price.
. This clarification of policy was sent to the PAA and the Pennsylvania Department of Transportation (PennDot), the agency that collects sales tax on automobile purchases. Press releases were also issued concerning the clarification.
. Section 1988 provides in pertinent part:
[I]n any action or proceeding to enforce a provision of [Section 1983 and other statutes] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
. Of course, public officials can be sued when acting in their personal capacity if the actions complained of were outside those which the public official usually administered, e.g., firing persons for political reasons, they were “persons” within the Act and public officials could be sued in their individual capacity. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).